Chapter 4: Evidence Flashcards
1
Q
1.1 Preliminary evidential matters
A
In talking about evidence, it is helpful to agree on some commonly used language, and some fundamental themes. This section will consider:
* facts in issue;
* proving a fact by means other than calling live evidence;
* types of evidence;
* admissibility, relevance and weight of evidence;
* tribunals of fact and law
2
Q
1.2 Facts in issue
A
Let’s start with asking what it is that evidence is called for. That is not a difficult concept; you call evidence to prove your case. We will look in a moment at what burdens there may be on either side to prove a case, but what
we can agree on right away is that evidence is called by any party in order to prove the ‘facts in issue’. The facts in issue are the facts that any party needs to prove in order to prove its case.
3
Q
1.2 Facts in issue
A
The facts in issue are the facts that any party needs to prove in order to prove its case. For the prosecution then, the facts in issue are those facts that are needed to prove the offence(s)
charged. The obvious place to start here is to simply list the ingredients of the offence. So, for a theft, the prosecution has to prove that the defendant appropriated property, belonging to another, dishonestly, with an intention of permanently depriving another of it
4
Q
1.2 Facts in issue
A
The job of the court is then to try to narrow the issues as much as possible, by seeing what elements, if any, the defence agree upon. They still require proof, but you would be able to prove
these elements by means other than calling live evidence (see the next pages).
5
Q
1.3 Proving a fact
A
There are several ways in which evidence can be established other than by a witness giving live evidence which we will consider in more depth:
* agreeing a witness statement as true by consent of the parties, Criminal Justice Act 1967, s.9;
* agreeing any fact between the parties, Criminal Justice Act 1967, s.10; and
* a judge or a jury to take ‘judicial notice’ of the fact.
6
Q
1.3.1 Agreeing a witness statement as true by consent of the parties
A
s.9 Criminal Justice Act 1967
The witness’s statement can be agreed as accurate and true in its written form.
The statement is then simply read out, and carries the same weight as if the witness had attended in person, sworn (or affirmed), and given the evidence from the witness box.
Evidence will only be agreed in this way if there is no challenge to the evidence. If the evidence is
disputed, then the witness must be called and challenged orally, so that the court can see and assess the dispute being aired openly and decide upon the dispute accordingly.
7
Q
1.3.2 Agreeing any fact between the parties
Criminal Justice Act 1967, s.10
A
Another way to prove a fact is simply for the advocates in a case to agree that the fact is so. The fact is reduced to writing, and both parties (the lawyers, not the witnesses) agree and sign the agreement.
So, for example, if a defendant is found with someone else’s credit card, the prosecution would need to prove that the owner of the card had not given anyone authority to take and use the
card. One could either acquire a witness statement from the original owner of the card or, more simply, just agree that the defendant was not the owner of the card and did not have permission to have it. We assume in this scenario that the defendant is challenging guilt on some other basis
and is not challenging that the card was someone else’s.
8
Q
1.3.3 Judicial notice
A
The next way in which a fact may be ‘proven’ without evidence is for a judge or a jury to take ‘judicial notice’ of the fact. It is clearly the case that we all know some things without needing to
have them proven to us. We know if we are in a recession, or if the economy is doing well. We know that traffic in city centres at rush hour is pretty much universally awful. It would be remarkably tedious for the parties in trial to have to prove every last fact which might help the jury understand a case when much of the factual context for a case is simply ‘known’. Where
facts are generally and widely known, then formal proof of them is therefore not required.
9
Q
1.3.3 Judicial notice
A
The doctrine of ‘notice’ goes a touch further, in that a judge is permitted to take judicial notice of a fact ‘on enquiry’. This simply means that judges might not know a particular fact ‘off the top of their head’ but could find out very easily, from a source that would be incontrovertible. So, for example, which counties border Staffordshire? If this was relevant to the case, the parties would have the option of asking the judge to take judicial notice ‘on enquiry’ and simply let the judge look up the answer. Jurors are not allowed to do their own research at any time.
10
Q
1.3.3 Judicial notice
A
The final point on taking notice is that the jurors cannot take notice on personal matters that they happen to know, but are not generally known. If a juror has personal knowledge of matters that are relevant to a case, they should let the court know, and the judge can deal with any issues that
might arise.
11
Q
1.4 Types of evidence
A
Evidence can come in a variety of forms:
(a) oral evidence given by a witness in court – the most common
(b) written form:
(i) agreed statements (s. 9 CJA 1967);
(ii) admitted facts (s. 10 CJA 1967)
(c) ’real’ evidence
(d) ‘direct’ evidence
(e) ‘circumstantial’ evidence
(f) a ‘view’.
12
Q
Real Evidence
A
Real evidence – simply means objects and things which are brought to court for inspection. Some real evidence will be in the form of documents that are exhibited by a witness who can vouch for their origin.
13
Q
Direct evidence v circumstantial evidence
A
The other way in which it is important to classify evidence is according to whether it is ‘direct evidence’, namely evidence that a witness gives of
having had direct experience of a matter in issue, or circumstantial evidence, ie evidence from which facts are inferred. An example of the difference might be (in a case where it is in issue where the defendant was at midnight) witness 1 saw the defendant at the station at midnight the other way in which it is important to classify
evidence is according to whether it is ‘direct evidence’, namely evidence that a witness gives of having had direct experience of a matter in issue, or circumstantial evidence, ie evidence from which facts are inferred. An example of the difference might be (in a case where it is in issue Awhere the defendant was at midnight) witness 1 saw the defendant at the station at midnight
14
Q
A view
A
Occasionally juries can visit a scene of a crime, or leave court to view an object that cannot be brought into court. This is called a ‘view’. Their observations become evidence in the
case
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Q
1.5 Admissibility, relevance and weight of evidence
A
For any evidence to be admissible, it must be relevant. This is the first and most fundamental principle of evidence. Relevance is established by whether the evidence is ‘logically probative’ of a fact in issue – ie does
the evidence tend to prove or disprove a fact in issue. If evidence is irrelevant, it is inadmissible, and if the evidence is relevant, it is admissible. R v Usayi [2017] EWCA Crim 1394 In the case of R v Usayi a trial took place where the defendant was charged with a sexual assault.
16
Q
1.5 Admissibility, relevance and weight of evidence
A
The defence had, in its possession, a note that tended to suggest that the complainant had earlier incorrectly indicated that her mother had died. The defence argued that this showed her to be dishonest. In the trial, there had been an argument about the admissibility of this evidence (on the basis of ‘hearsay’ – that a statement made out of court may not be presented in evidence as proof of its
contents). The Court of Appeal indicated that the evidence was insufficiently relevant regardless of the
hearsay arguments, and should not have been admitted as it had insufficient bearing on the
issues at hand.
17
Q
1.5.1 Exclusionary rules
A
That is, of course, not the end of the matter in terms of admissibility. Having first considered relevance, you then consider whether the relevant evidence is nonetheless subject to an exclusionary rule. There are rules to protect the fairness of trials to prevent evidence which is relevant, but should still not be admitted because of the effect on the fairness of a trial.
For example, if the police acquired relevant information by using an illegal phone tap, then the courts would consider an exclusionary rule to prevent the use of the evidence in court
18
Q
1.5.2 Weight
A
The final concept is that of ‘weight’. All evidence varies in terms of how strong, reliable and valuable it is. Attaching the right degree of weight to a piece of evidence is a matter for the jury. Advocates will typically devote considerable effort into persuading the jurors as to what weight they should
attach to the evidence.
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Q
1.5.2 Weight
A
However, if the evidence looks to be very problematic (eg a drunken man catching only a fleeting glimpse of a person committing a crime) then the judge may intervene to rule the evidence as inadmissible. This would be on the basis that although it may be relevant, no one could reasonably put any reliance on the evidence. So in extreme examples of poor-quality evidence, the weight of the evidence may affect its admissibility.
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Q
1.6 Tribunals of fact and law
A
We use the word ‘tribunals’ when asking these questions:
(a) Who in this case determines what the facts are; and
(b) Who in this case determines the law?
The answer to question one is that the ‘tribunal of fact’ is responsible for determining the facts. In
the Magistrates’ Court, the tribunal of fact is the bench of magistrates (or District Judge). In the Crown Court, the tribunal of fact is the jury.
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Q
1.6 Tribunals of fact and law
A
The second question is answered in similar terms, namely that the tribunal of law is responsible for the law, and in the Magistrates’ Court, the tribunal of law comprises the magistrates (or District Judge) and in the Crown Court, the tribunal of law is the judge. Issues of admissibility of evidence are matters of law for the tribunal of law to determine
22
Q
1.7 Crown Court
A
The other critical point to note is that the tribunals are different in the Crown Court (i.e. judge and jury take one role each) but in the magistrates’ court, it is the same person (or people) playing
both roles. This has huge practical implications. As an example, a defendant might confess in a
criminal case, but then challenge the admissibility of the confession, perhaps saying that officers used force to extract the confession. In the Crown Court, the judge alone will hear the application to exclude as inadmissible the evidence of the confession
23
Q
1.7 Crown Court
A
If the application is successful, the jury (as tribunal of fact) will never be told that there had been a confession. In the magistrates’ court,
it is the same bench that hears the application to exclude the confession that will ultimately consider guilt. Having ruled the confession as inadmissible, the magistrates must then ‘put out of their mind’ the confession and not let their knowledge of the confession influence their consideration of the facts of the case. It is like the dramas we all see from the U.S. where attorneys use foul play or some trick in the courtroom and the judge says ‘strike that from the record’ and
the jurors have to pretend that they never heard the improperly adduced evidence. The fact that in the magistrates’ court, the tribunals and fact and law are the same is regularly a strong reason for defendants to prefer trial in the Crown Court.
24
Q
1.8 Summary
A
This section considered some of the basic principles of evidence.
* Facts in issue – the elements that any party needs to prove in order to prove its case.
* Proving a fact – by means other than calling live evidence:
- agreeing a witness statement as true by consent of the parties, Criminal Justice Act 1967,
s.9;
- agreeing any fact between the parties, Criminal Justice Act 1967, s.10; and
- a judge or a jury to take ‘judicial notice’ of the fact
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1.8 Summary
* Types of evidence – oral evidence, written evidence (agreed statements and admitted facts from s.9 and s.10 CJA 1967), real evidence (such as objects), direct evidence, circumstantial evidence and a view (an observation).
* Evidence will be admissible if:
- relevant – ‘logically probative’ of a fact in issue – ie does the evidence tend to prove or disprove a fact in issue;
- not subject to an exclusionary rule of evidence; and - not so poor-quality evidence, that no one could reasonably put any reliance (weight).
* Tribunals of facts – determine what the facts of the case are. Tribunals of law – determine the law, such as issues of admissibility of evidence.
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2 Legal and evidential burden
2.1 Burden and standard of proof
If you have been to any criminal court, or seen any legal drama, you will doubtless have heard
words along the lines of:
members of the jury, the prosecution brings this case, and it is the prosecution that has to prove
it. The standard to which the prosecution has to prove the case is ‘so that you are sure of guilt’
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2.1 Burden and standard of proof
This is a simple statement of the burden and standard of proof.
* The burden of proving the elements of the offence is always on the prosecution.
* The standard to which prosecution proof is put is always “so that you are sure of guilt” which is simply a modern way of saying ‘beyond reasonable doubt’.
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2.2 Legal burden
You may also have heard a judge or advocate say ‘the defendant has nothing to prove in this case’. This will be true in most cases – but not all. In some cases, the defendant has the burden to prove something too.
So far, the burden to prove an element of your case that we’ve been referring to is the legal burden. A legal burden is simply the requirement to prove an element of your case to a prescribed
standard. The standard varies between prosecution and defence
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2.2 Legal burden
An example where the defendant has the burden to prove something would be one of the defences, such as insanity. It is not proper or reasonable for the prosecution to prove every single defendant in the world is sane. It is up to individual defendants to indicate (through their
advocates) that they are asserting a lack of mens rea by virtue of insanity. That assertion needs to be made by the defence, and proved by the defence. The standard for anything that the defence has to prove is the balance of probabilities.
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2.3 Evidential burden
All that we now have to do is to explain the ‘evidential burden’ without losing sight of how simple
an idea the legal burden is.
In the previous examples you will have noted that it’s a question of fact for the tribunal of fact as to whether the legal burden of proof has been discharged. In the Crown Court, it’s the jury that’s being addressed when there are discussions about the prosecution proving its case beyond
reasonable doubt.
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2.3 Evidential burden
However, before any issue is put before the jury, the judge has to be happy that the jury has heard some evidence on which it could find that the issue has been proved. There is a function here for the judge (as tribunal of law) to ensure that some evidence has been raised on an issue or fact, before the jury (as tribunal of fact) can find if the fact or issue is proved. The burden to raise
some evidence to satisfy the judge that the matter should be argued before the jury is the evidential burden.
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2.4 Burden on the defence
It is very important to understand that if the defence simply challenges the prosecution case and
asserts that the prosecution is wrong, this does not create any burden on the defence. The defence can call evidence and make positive assertions such as ‘it was not me’, ‘you are lying’ and ‘your view was not good’, and none of these mean that a burden has passed to the defence.
It is simply that the defence is engaging and contesting issues that the prosecution has to prove.
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2.4.1 Legal and evidential burden
In every case, if you have a legal burden to prove a fact in issue, you have the evidential burden of
‘passing the judge’ with the same evidence. However, in very rare cases, the legal burden and the evidential burden become detached. The only example that surfaces with any regularity at all is ‘self-defence’. This is a very special and rare breed, where the judge requires some evidence to be raised in order to put the issue before the jury, but where there is no actual standard of proof required. In the case of assaults generally, it is presumed that any use of force is unlawful. It is, however, possible that the defendant used
force in self-defence lawfully
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2.4.1 Legal and evidential burden
The courts simply require that the defence raise ‘some’ evidence to
‘pass the judge’ that the defendant did act in self-defence. If the judge is content, then the prosecution is on notice that to prove that the use of force was lawful, it has to disprove selfdefence. The burden was always upon the prosecution to prove that the force was unlawful, so in a way nothing has changed, except that we now know that proving that the force was unlawful requires proof that the force was not in self-defence.
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2.4.1 Legal and evidential burden
The evidential burden on the defence here has simply meant that the defence can’t make a speech to the jury calling on the jury to acquit on the basis of self-defence without actually having raised some evidence of self-defence earlier in the trial. To that extent, the rule simply gives force to common sense that the defence can’t raise a matter like this without at least some evidence of it.
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2.6 Duress and alibi
* The prosecution are not required to predict that a defence of duress will be relied upon but if sufficient evidence is raised to leave it as a live issue it is the prosecution who must disprove it beyond a reasonable doubt.
* In a case of alibi the Judge must direct the jury that although the defence have raised the defence, it is not a matter for them to prove. The prosecution retain the burden of disproving the alibi so the jury are sure.
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2.7 Summary
The Legal Burden
The burden of proving the elements of the offence is always on the prosecution.
* A legal burden – is simply the requirement to prove an element of your case to a prescribed
standard. The standard varies between prosecution and defence:
- The standard to which prosecution proof is put is always to convince the jury of guilt “so that they are sure” which means the same as ‘beyond reasonable doubt’.
- The standard for almost everything that the defence has to prove is the ‘balance of probabilities’
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Evidential Burden
* An evidential burden – is where you have to raise some evidence to satisfy the judge that the matter should be argued before the jury.
* In every case, if you have a legal burden to prove a fact in issue, you have the evidential burden of ‘passing the judge’ with the same evidence. However, in very rare cases, the legal burden and the evidential burden become detached, such as self-defence.
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How is evidence excluded?
It will often be necessary to make or respond to a legal application to exclude evidence in a criminal case. Sometimes, depending on the importance of the evidence, a successful application of this nature can result in the case coming to an end. Similarly, there are methods of applying to stop a case where it would be unfair or legally improper for it to continue, or where there is insufficient evidence in support of those charges the prosecution is pursuing.
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3.1 Excluding evidence or seeking to stop a case
The principal ways of excluding evidence and/or seeking to bring a prosecution case to an end
are as follows:
* Applications for dismissal;
* Submissions of no case to answer;
* Applications to exclude evidence under s.78 of the Police and Criminal Evidence Act 1984
(PACE);
* Applications to exclude confessions under s.76 PACE;
* Applications to exclude evidence under the preserved common law provisions – s.82(3) PACE;
* Abuse of process applications.
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3.2 Applications for dismissal
An application for dismissal is a pre-trial application to have the charges against a defendant
dismissed. Such an application can be made:
(a) only after a defendant is sent by the magistrates’ court for trial to the Crown Court;
(b) only after the defendant has been served with the evidence relating to the offence; and
(c) only before the defendant is arraigned (ie the offence is put to D and D pleads guilty or not
guilty).
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3.2 Applications for dismissal
The power to make the application is contained in Schedule 3 of the Crime and Disorder Act
(CDA) 1998 and the procedure is set out in CrimPR r.9.16.
The application is made to a Crown Court Judge and if the defendant wishes to make an oral
application D must give written notice of D’s intention to do so
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The test for dismissing the charge is set out in Schedule 3 para 2(2) CDA:
’The judge shall dismiss a charge (and accordingly quash any count relating to it in any indictment ...) ... if it appears to him that the evidence against the applicant would not be
sufficient for him to be properly convicted.’
45
The test for dismissing the charge is set out in Schedule 3 para 2(2) CDA:
This amounts to the same test to be applied where the defence make a submission of no case to
answer, as set out in the case of R v Galbraith [1981] 73 Cr App R 124, CA, namely that the judge should stop the case:
(a) where there is no evidence that the crime has been committed by the defendant; or
(b) where the prosecution evidence, taken at its highest, is such that a properly directed jury could not properly convict on it.
46
R (on the application of Inland Revenue Commissioners) v Crown Court at Kingston [2001] 4 All ER
721; [2001] EWHC Admin 581
The Divisional Court held that a judge considering an application to dismiss must take into account the whole of the evidence and not view matters in isolation from their context or other
evidence; where the prosecution seeks inferences to be drawn from the evidence the judge should
assess whether such inferences could properly be drawn by the jury
47
R (Snelgrove) v Woolwich Crown Court [2005] 1 Cr App R 18; 1 WLR 3223 (DC)
It was held that judicial review cannot be used to challenge a decision by the Crown Court on an application to dismiss. Nonetheless, the ruling in R (on the application of Inland Revenue Commissioners) v Crown Court at Kingston regarding the approach to be applied in such applications remains valid
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3.3 Submissions of no case to answer
During a trial and after the prosecution has presented all of its evidence, the defence are entitled
to submit to the judge that there is no case to answer on any one or all of the charges faced by the defendant. The application can be made in the magistrates’ court and the Crown Court.
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Key case: R v Galbraith [1981] 73 Cr App R 124
In the case of R v Galbraith [1981] 73 Cr App R 124 Lord Lane CJ set out the following principles to be applied
‘(1) if there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case;
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(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or
vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the
conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.
(b) Where, however, the prosecution evidence is such that its strength or
weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant
is guilty, then the judge should allow the matter to be tried by the jury ...
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Key case: R v Galbraith [1981] 73 Cr App R 124
A submission of no case to answer is made at the close of the prosecution case because it is only at this stage that the entirety of the prosecution case against a defendant can be considered. It is for this reason that a submission of no case to answer is often referred to as a ‘half-time
submission’ (ie after the prosecution case but before the defence case).
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Key case: R v Galbraith [1981] 73 Cr App R 124
In the Crown Court the application will take place in the absence of the jury; if the application is unsuccessful the jury will not be informed that such an application has been made. However, if the application is successful, the jury will be informed that there is insufficient evidence on the count or counts involved and the judge will instruct the foreman to enter a verdict/verdicts of not
guilty
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Galbraith Test
As can be seen from the Galbraith test, where there is no evidence to support the charge then
there will be no difficulty in stopping the case. This would be an application under the first limb of
Galbraith, such as where a witness accepts that the person who committed the offence is not the
person standing in the dock. In these circumstances, assuming there is no other evidence available to the prosecution, there is no evidence that the offence has been committed by the defendant and the case will be stopped.
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Integrity of Evidence is Open to Question
The difficulty arises, as set out in the Galbraith test itself, when there is some evidence, albeit the integrity of that evidence is open to question. This is where the judge/magistrates will have to consider whether that evidence, taken at its highest, is such that a conviction can properly be
founded upon it. This is an application under the second limb of Galbraith, such as where a
witness has given inherently weak, vague or contradictory evidence, or where the credibility of the witness is open to question, such that the evidence presented by the prosecution could not properly found a conviction. In general, issues of credibility are matters for the tribunal of fact (the jury/magistrates) to weigh up in reaching a verdict and will not normally result in a case
being stopped on a submission of no case to answer
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CrimPR r.24.3(3)(d)
In the magistrates’ court the procedure is contained in CrimPR r.24.3(3)(d) and in the Crown
Court CrimPR r.25.9(2)(e), both of which provide that, at the conclusion of the prosecution case, on the defendant’s application or on its own initiative, the court (i) may acquit on the ground that the prosecution evidence is insufficient for any reasonable court properly to convict, but (ii) must not do so unless the prosecutor has had an opportunity to make representations (ie the
prosecution must be given the right to reply to such an application). The test here is taken from Galbraith and there is no material difference between the two. There is no obligation in the magistrates’ court or the Crown Court for reasons to be given when rejecting a submission of no case to answer.
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3.4 Abuse of process applications
Sometimes there is an issue of unfairness or impropriety so fundamental that for the trial to
continue would be an abuse of the process of the court. Such cases often go beyond applications
to exclude evidence; rather, they go to the heart of whether or not a case should be allowed to continue. In such cases the defence can apply to stay proceedings as an abuse of process of the court. R v Crawley [2014] 2 Cr App R 16; [2014] EWCA Crim 1028
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Sir Brian Leveson P summarised the power to stay proceedings as an abuse of process as follows:
“there are two categories of case in which the court has power to stay proceedings for abuse
of process. These are, first, where the court concludes that the accused can no longer receive a fair hearing; and, second, where it would otherwise be unfair to try the accused or, put
another way, where a stay is necessary to protect the integrity of the criminal justice system.
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The first limb and the second limb
The first limb focuses on the trial process and where the court concludes that the accused
would not receive a fair hearing it will stay the proceedings; no balancing exercise is required. The second limb concerns the integrity of the criminal justice system and applies where the
court considers that the accused should not be standing trial at all, irrespective of the potential fairness of the trial itself.“
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He went on to say:
”Furthermore, it is clear from the authorities and beyond argument that there is a strong
public interest in the prosecution of crime and in ensuring that those charged with serious criminal offences are tried. Ordering a stay of proceedings, which in criminal law is effectively a permanent remedy, is a remedy of last resort. As Lord Bingham of Cornhill observed in
Attorney General’s Reference (No.2 of 2001) ... ‘The public interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances.’”
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R v Maxwell [2011] 2 Cr App R 31, SC: Two categories of cases
Dyson LJ put it like this:
‘It is well established that the court has the power to stay proceedings in two categories of case, namely: (i) where it will be impossible to give the accused a fair trial; and (ii) where it
offends the court’s sense of justice and propriety to be asked to try the accused in the particular circumstances of the case. In the first category of case, if the court concludes that an accused cannot receive a fair trial, it will stay the proceedings without more. No question of the balancing of competing interests arises
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Second category of cases
In the second category of case, the court is concerned to protect the integrity of the criminal justice system. Here a stay will be granted
where the court concludes that in all the circumstances a trial will offend “the court’s sense of justice and propriety” (per Lord Lowry in R v Horseferry Road Magistrates’ Court Ex p. Bennett [1994] 98 Cr App R 114 at 135; [1994] 1 A.C. 42 at 74) or will “undermine public confidence in the
criminal justice system and bring it into disrepute” (per Lord Steyn in R v Latif [1996] 2 Cr App R 92 at 100; [1996] 1 W.L.R. 104 at 112).’
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There are numerous examples of where the defence might apply to have the proceedings stayed
as an abuse of the process of the court. These include:
* where a defendant has been tricked or coerced into committing an offence the defendant would not otherwise have committed
* where a defendant is prosecuted despite an unequivocal promise by the prosecution that the
defendant will not be
* where the police have acted in such a way as to undermine public confidence in the criminal
justice system and bring it into disrepute, such as by deliberately destroying evidence that would have assisted the defence
* where the prosecution has manipulated or misused the process of the court so as to deprive a
defendant of a protection afforded by law
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Delay and Abuse of the Process of Court
Delay can amount to an abuse of process of the court. If the prosecution has deliberately delayed
proceedings in order to gain a tactical advantage this is likely to amount to an abuse of process. Even if the defence cannot assert that the prosecution has deliberately delayed proceedings, inordinate or unconscionable delay due to the inefficiency of the prosecution in bringing a case coupled with prejudice caused to the defence as a result may be sufficient for an abuse of process application to succeed (R v Gateshead Justices, ex parte Smith [1985] 149 JP 861).
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Application to Stay in Proceedings
The application is to stay the proceedings as an abuse of process. This means that, if the
application is successful, the prosecution case will not be able to proceed. This is not the same as
a ‘not guilty’ verdict, albeit there will be no conviction and the defendant’s record will not be tarnished. In bringing such an application the defence will have to prove abuse of process on the balance of probabilities. Abuse of process applications are mainly dealt with in the Crown Court (where the application is to stay the indictment as an abuse of process). They can, however, be brought in the magistrates’ court but only on the ground that a defendant is unable to have a fair trial (and not on the ground that the integrity of the justice system has been brought into
disrepute – an application on this basis would have to be made to the Divisional Court by way of
judicial review)
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3.5 Common law discretion to exclude evidence
PACE Section 82(3) ‘82(3) Nothing in this Part of this Act shall prejudice any power of a court to exclude evidence (whether by preventing questions from being put or otherwise) at its discretion.
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Section 82(3) PACE
Section 82(3) PACE preserves the common law discretion of the courts to exclude evidence where its prejudicial effect outweighs its probative value; this includes the discretion to exclude evidence
if it is necessary in order to secure a fair trial for the accused
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Section 82(3) PACE
This discretion to exclude evidence applies only to prosecution evidence. As such, at common law, it is not open to the prosecution to apply to exclude defence evidence, or for one defendant to apply to exclude evidence which a co-defendant seeks to admit. If significant unfairness would result to a defendant from a co-defendant’s evidence in such circumstances the defendant could
apply to be tried separately from the co-defendant.
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In practice
In practice, the common law discretion to exclude evidence has little relevance. This is due to the wide-ranging statutory powers to exclude evidence, particularly under s.78 and s.76 PACE. As you have read, the court also has considerable powers in a number of circumstances to stay the indictment where to allow the case to continue would be an abuse of process
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3.6 Section 78 applications
Section 78 Police and Criminal Evidence Act 1984 (PACE)
’Exclusion of unfair evidence
(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the
circumstances, including the circumstances in which the evidence was obtained, the admission
of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it
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3.6 Section 78 applications
(2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.’
Section 78 PACE is concerned with the fundamental concept of fairness and is the principal and most important means by which the defence can seek to have prosecution evidence excluded.
Section 78 only applies to ‘evidence on which the prosecution proposes to rely’ so it cannot be used by the prosecution or a co-defendant to exclude evidence that a defendant seeks to admit. R v Quinn [1990] Crim.L.R. 581
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Lord Lane CJ explained the nature of the court’s exclusionary discretion under s.78:
The function of the judge is therefore to protect the fairness of the proceedings, and normally proceedings are fair if a jury hears all relevant evidence which either side wishes to place before it, but proceedings may become unfair if, for example, one side is allowed to
adduce relevant evidence which, for one reason or another, the other side cannot properly challenge or meet.
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Exclude any prosecution evidence
Being of general application, s.78 has been used in a wide variety of cases to seek to exclude any
prosecution evidence which the defence consider would result in unfairness. This often, but not
always, includes taking into account matters which the defence contend amounts to such evidence having been obtained unlawfully, improperly or unfairly. This could include situations in which evidence was obtained in breach of the European Convention on Human Rights or the
provisions of PACE (or the Codes of Practice issued under PACE).
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Section 78. is commonly utilised in
Section 78 is also commonly utilised alongside s.76 PACE to seek to exclude evidence of confessions which the prosecution seek to rely upon (the sections on confessions will cover this in
more detail). It is worth bearing in mind that simply because evidence has been irregularly obtained does not per se render it inadmissible.
The key test for the court in deciding whether to exclude prosecution evidence under s.78 is
whether the admission of the evidence would have such an adverse effect on the fairness of the
proceedings that the court ought not to admit it.
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Section 78
The court is not concerned with marking its disapproval of police conduct by excluding evidence,
or otherwise seeking to punish the prosecution for the way in which evidence has been obtained,
it is simply concerned with whether fairness dictates that the evidence should be excluded in the
circumstances. However, where there has been bad faith on the part of the police when acting in breach of PACE
or the Codes of Practice that is a factor which is likely to lead to exclusion of the evidence.
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3.7 PACE Codes of Practice
Since s.78 refers to having regard to all the circumstances, including the circumstances in which
the evidence was obtained the defence will, where applicable, refer to breaches of the Codes of
Practice under PACE when making a s.78 application. The Codes of Practice are issued under s.66 PACE and set out the procedures that the police (or other investigators) must follow in the exercise of their powers under PACE. As such, it will often be
the case that the defence will rely on a breach of the code as the basis for seeking to exclude the evidence under s.78. Under s.67(11) PACE the codes are admissible in evidence; this means that where a breach of a
code is alleged the defence are entitled to rely in court on the content of the code which sets out
those procedures which should have been followed.
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There are eight Codes of Practice, namely:
* Code A (Stop and Search);
* Code B (Entry, Search and Seizure);
* Code C (Detention, Treatment and Questioning of Non-Terrorist Suspects);
* Code D (Identification);
* Code E (Audio Recordings of Interviews);
* Code F (Visual Recording of Interviews with Sound);
* Code G (Arrest); and
* Code H (Detention, Treatment and Questioning of Terrorism Suspects).
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3.8 Code C
To take an example, Code C (the Code of Practice for the Detention, Treatment and Questioning
of Persons by Police Officers) contains, amongst many others, the following provisions which
must be followed by the police:
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Paragraph 3.1
(a) Paragraph 3.1 provides that detained suspects must be informed of:
(i) their right to consult privately with a solicitor and that free independent legal advice is available;
(ii) their right to have someone informed of their arrest; and
(iii) their right to consult the Codes of Practice.
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Paragraph 10.1
(b) Paragraph 10.1 provides that a person whom there are grounds to suspect of an offence must
be cautioned before any questions about the offence are put to them, if either the suspect’s answers or silence may be used in evidence against them.
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Paragraph 10.3
(c) Paragraph 10.3 requires the caution to be given on arrest.
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Paragraph 10.5
(d) Paragraph 10.5 states that the caution should be in the following terms: ‘You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.’
Minor deviations are permissible (para 10.7).
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Paragraph 11.1A
(e) Paragraph 11.1A defines an interview as ‘the questioning of a suspect regarding their
involvement or suspected involvement in a criminal offence’
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Paragraph 11.1
(f) Paragraph 11.1 requires an interview to take place at a police station, except where the delay
would:
(i) lead to interference or harm to evidence connected with an offence
(ii) interference with or physical harm to other people
(iii) serious loss or damage to property
(iv) lead to alerting other suspects who have not yet been arrested; or
(v) hinder the recovery of property obtained as a result of the offence.
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Paragraph 11.15
(g) Paragraph 11.15 requires juveniles (under 18s) or those with mental disorders or who are
mentally vulnerable only to be interviewed in the presence of an appropriate adult.
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Pace Code C Note 1G
Mentally vulnerable’ applies to any detainee who, because of their
mental state or capacity, may not understand the significance of what is said, of questions or of
their replies. An appropriate adult (see Code C Note 17G and Annex E para 2 for definition) should not be
confused with a legal adviser and an appropriate adult will attend the interview in addition to the legal adviser. The appropriate adult gives advice to the suspect, observes whether the interview is conducted properly and fairly and assists with communication – see para 11.17 Code C.
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3.8.1 Section 78 application examples
To this end s.78 has been used variously to exclude evidence obtained where:
* the ‘fundamental right’ of access to legal advice has been improperly denied;
* where waiver of the right of access to legal advice was not voluntary, informed or unequivocal;
* where there has been a failure to caution a suspect before questioning;
* where an appropriate adult has not been provided for a youth, mentally disordered or mentally vulnerable suspect;
* where identification procedures have not been followed
In the sections on confessions you will see more examples of how s.78 is used as a further or alternative argument to exclude confession evidence.
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3.9 Significant and substantial breaches of the codes
Charles v Crown Prosecution Service [2009] EWHC 3521 Moses LJ stated (concerning Code C):
‘These provisions are not a mere rigmarole to be recited like a mantra and then ignored. The provisions of the PACE Act and the code relating to caution are designed to protect a detainee. They are important protections. They impose significant disciplines upon the police as to how
they are to behave
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Moses LJ stated (concerning Code C):
If they can secure a serious conviction in breach of those provisions that is an important matter which undermines the protection of a detainee in the police station. That is not to say, by any means, that every breach will lead to the exclusion of the evidence
obtained in consequence of that breach; far from it. It is merely to emphasise the general importance of the breaches when exercising the judgment in Section 78. Their significance must be taken into account.’
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3.9 Significant and substantial breaches of the codes
In R v Keenan, a case concerning the ‘Verballing’ Provisions of Code C (requirement to make
accurate record of interview and for the suspect to sign the record as accurate), Hodgson J said:
‘It is clear that not every breach or combination of breaches of the codes will justify the exclusion of interview evidence under section 76 or section 78 ... They must be significant and substantial. If this were not the case, the courts would be undertaking a task which is no part of their duty:
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Lord Lane CJ said in Reg v Delaney, The Times, 30 August 1988:
‘It is no part of the duty of the court to rule a statement inadmissible simply in order to punish the police for failure to observe the Codes of Practice. But if the breaches are “significant and substantial”,
we think it makes good sense to exclude them.’
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R v Roberts [1997] 1 Cr App R 227
The Court of Appeal gave guidance on the approach that should be adopted to questionable
police conduct. Hirst LJ:
‘In our judgment ... the true test is whether, having regard to the circumstances of the case as
a whole, the conduct of the police, either wittingly or unwittingly, led to unfairness or injustice:
and we consider that the proper adjudicator of this question is the trial judge himself, who has
seen the witnesses, and who has a wide margin of discretion under section 78 which should only be disturbed in this court if it can be shown that he erred in principle or was plainly wrong.’
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Not seriousness of breach but rather effect of breach
It is important to remember that when considering an application under s 78 the principal
consideration is not the seriousness of any breach per se, but rather the effect of the breach, namely whether the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. The position is therefore that the more
significant and substantial the breach, the more likely it is to result in unfairness and, thus, exclusion.
Conversely, even major breaches will not lead to exclusion if the court reaches the view that no unfairness was caused in the circumstances.
See R v Quinn [1995] 1 Cr App R 480
and R v Dures [1997] 2 Cr App R 247
for the proposition that the Court of Appeal will not interfere with a judge’s decision under s.78
unless satisfied that the decision was perverse, ie no reasonable judge having heard the evidence
could have reached the conclusion that he did.
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R v Ryan [1992] Crim LR 187
The Court of Appeal held that it was far from inevitable that where there had been a substantial breach of the PACE Codes the evidence was always required to be excluded. In this case the judge could properly conclude that despite a breach of Code D no prejudice had been caused to
the defendant.
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3.10 Making a section 78 application
An application under s.78 PACE can be made:
* before the trial;
* at the commencement of the trial; or
* just prior to the prosecution seeking to admit the evidence which the defence wish to be
excluded
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3.10 Making a section 78 application
Where an application to exclude evidence under s.78 would, if granted, result in the prosecution
case being fatally weakened (because the prosecution would be left with no or insufficient remaining evidence to proceed) a judge will often want that argument to take place at a pre-trial
hearing or at the commencement of the trial; in the Crown Court this would often be before a jury is sworn. On the other hand, where the application relates to a matter of less significance the judge may direct that the matter is dealt with at a convenient moment during the trial itself. If the argument is not heard before the case commences, the prosecution should avoid making any
reference to the disputed evidence in the opening speech. The key point is that a s.78 application should be made before the evidence to which objection is taken is adduced.
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3.10 Making a section 78 application
Where the point of law is clear from the case papers or becomes clear following initial disclosure,
the defence should include the point of law in the Defence Statement together with any authorities relied upon (s.6A(1)(d) Criminal Procedure and Investigations Act (CPIA) 1996).
In practice, the defence representative will often draft a skeleton argument in support of D’s
application and the prosecution will draft a skeleton argument opposing it.
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3.10 Making a section 78 application
Directions will be given by the judge in the Crown Court, usually at the Plea and Trial Preparation
Hearings (PTPH), as to when a s.78 application will be heard. Directions will be given by the judge in the Crown Court, usually at the Plea and Trial Preparation Hearings (PTPH), as to when a s.78 application will be heard. Similar directions will be given when dealing with case management at the magistrates’ court.
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3.11 Voir dire
Since a s.78 application is an application by the defence (to exclude prosecution evidence), the
defence representative will address the court first followed by the prosecution advocate responding.
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In Crown Court
In the Crown Court, where there is a dispute on the facts between the defence and the prosecution, the judge will not be able to determine the s.78 application until the factual matter has been resolved. For example, if the defendant is advancing an argument that the police acted in a way that was in breach of the PACE codes but the police officers concerned deny this, then the judge will have to hear evidence and make a decision on the facts before the judge can decide
how the law should be applied
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Normal Burden and Standard of Proof
The normal burden and standard of proof in criminal cases apply,
so in order to find in favour of the prosecution version of the facts the judge will have to be satisfied of that factual position beyond reasonable doubt. If the judge concludes after hearing the evidence that the police acted appropriately, the legal argument will fail. On the other hand,
if the judge concludes that the police misbehaved and that there had been a significant and substantial breach of the code resulting in unfairness to the defendant, then the evidence
concerned is likely to be excluded
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Mini Trial or Trial within Trial
Hearing evidence in this way on a legal argument is called a trial ‘on the voir dire‘ (commonly referred to simply as a ‘voir dire‘) and is a type of mini-trial or ‘trial within a trial’. The evidence called by the prosecution and defence will relate only to the matters in dispute. In a voir dire the
witnesses testify on a special form of oath/affirmation. ’That I will true answer make to all such questions as the court shall demand of me’.
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Takes place in the absence of a jury
Being a legal argument, in the Crown Court a voir dire takes place in the absence of the jury. In
the magistrates’ court, the magistrates (being both the tribunal of fact and law) can rule on a s.78
application when it arises or hear all the evidence (including the disputed evidence relating to the
legal argument) before ruling on admissibility. However, the interests of justice may dictate that a
ruling on admissibility is made early enough to allow the defendant to know whether that evidence forms part of the case, to deal with it in cross-examination and in D’s evidence and, if appropriate, to make a meaningful submission of no case to answer. This is particularly the case where the disputed evidence is a confession which forms the main evidence against a defendant.
As such, disputed confessions should be determined as a preliminary issue. When the application is under both s.76 and s.78 PACE a voir dire should be held as a preliminary issue.
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3.12 Summary
Main methods to exclude evidence or stop a case
* Application for dismissal – for cases sent to Crown Court. A pre-trial application made after
evidence is served and before arraignment. Same test as submission of no case to answer
(Galbraith).
* Submission of no case to answer- only available during trial at the close of the prosecution
case Galbraith test.
* Application to exclude a confession – s.76 PACE. The main provision for excluding confessions.
Often used in conjunction with s.78 PACE.
* Application to exclude evidence under the common law – s.82(3) PACE. May be used only to
exclude prosecution evidence.
* Abuse of process application – an application to stay the indictment where either (1) the
defendant cannot have a fair trial; or (2) continuing the prosecution offends the court’s sense
of justice and propriety or would undermine public confidence in the criminal justice system
and bring it into disrepute.
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This section also considered applications to exclude evidence under s.78 PACE:
* The key test for the court in deciding whether to exclude prosecution evidence under s.78 is
whether the admission of the evidence would have such an adverse effect on the fairness of
the proceedings that the court ought not to admit it.
* Section 78 only applies to ‘evidence on which the prosecution proposes to rely’ so it cannot be
used by the prosecution or a co-defendant to exclude evidence that a defendant seeks to admit, nor can it be used after evidence is adduced
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This section also considered applications to exclude evidence under s.78 PACE:
* This could include situations in which evidence was obtained in breach of the European
Convention on Human Rights or the provisions of PACE (or the Codes of Practice issued under PACE). The codes are admissible in evidence. Simply because evidence has been irregularly obtained does not per se render it inadmissible.
* Directions will be given by the judge as to when a s.78 application will be heard. A s.78 application should be made before the evidence to which objection is taken is adduced. A voir
dire will be necessary where there is a dispute on the facts between the defence and the prosecution
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4 Excluding confessions – s.76
4.1 What is a confession?
’Section 82 In this Part of this Act—
”confession”, includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise.
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4.1 What is a confession?
The definition of a confession in the Police and Criminal Evidence Act 1984 (PACE), s. 82(1) is deliberately wide and the following will fall within the definition:
* unequivocal confessions of guilt (ie wholly inculpatory statements such as ‘I did it’).
* mixed statements (those which are partly inculpatory and partly exculpatory, such as ‘I had
nothing to do with it but I was glad to see the victim die’). These fall within the definition of a confession because they are partly adverse to the maker.
* depending on the context, a nod, sign or gesture can be sufficient, as a confession does not have to be articulated in words.
Wholly exculpatory statements (‘It was nothing to do with me’) do not fall within the definition of a
confession.
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4.2 Admissibility of confessions
Section 76 PACE
Section 76 – Confessions.
(1) In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not
excluded by the court in pursuance of this section.
(2) If, in any proceedings where the prosecution proposes to give in evidence a confession
made by an accused person, it is represented to the court that the confession was or may have been obtained—
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Section 76 – Confessions.
(a) by oppression of the person who made it; or
(b) in consequence of anything said or done which was likely, in the circumstances existing at
the time, to render unreliable any confession which might be made by him in consequence
thereof, the court shall not allow the confession to be given in evidence against him except in so far as
the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.
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Section 76 – Confessions
(3) In any proceedings where the prosecution proposes to give in evidence a confession made
by an accused person, the court may of its own motion require the prosecution, as a condition
of allowing it to do so, to prove that the confession was not obtained as mentioned in subsection (2) above.
(4) The fact that a confession is wholly or partly excluded in pursuance of this section shall not
affect the admissibility in evidence—
(a) of any facts discovered as a result of the confession; or
(b) where the confession is relevant as showing that the accused speaks, writes or expresses himself in a particular way, of so much of the confession as is necessary to show that he does so
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Section 76 – Confessions.
(5) Evidence that a fact to which this subsection applies was discovered as a result of a statement made by an accused person shall not be admissible unless evidence of how it was discovered is given by him or on his behalf.
(6) Subsection (5) above applies:
(a) to any fact discovered as a result of a confession which is wholly excluded in pursuance of this section; and
(b) To any fact discovered as a result of a confession which is partly so excluded, if the fact is
discovered as a result of the excluded part of the confession.
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Section 76 – Confessions.
(7) Nothing in Part VII of this Act shall prejudice the admissibility of a confession made by an
accused person.
(8) In this section “oppression” includes torture, inhuman or degrading treatment, and the use
or threat of violence (whether or not amounting to torture).’
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It follows that there are two main ways under s.76 to challenge a confession:
(a) under s.76(2)(a) – ‘oppression’; or
(b) under s.76(2)(b) – ‘anything said or done which was likely, in the circumstances existing at the
time, to render unreliable any confession which might be made by him in consequence
thereof’.
Note that s.76 does not automatically come into play to challenge confessions. Rather, it only
operates where ‘it is represented to the court’ by the defence that s.76(2)(a) or (b) apply. However,
even where there is no defence challenge, s.76(3) provides that the court itself can require the
prosecution to prove that the confession was not obtained as set out in s.76(2)(a) or (b)
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4.3 Limb 1 – Exclusion for oppression – s.76(2)(a)
Section 76(2)(a) provides that where it is represented to the court that the confession was or may have been obtained by oppression of the person who made it, then the court shall not allow the confession to be given in evidence against him except insofar as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not
obtained as aforesaid.
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Definition of oppression
’Oppression’ is widely defined in s.76(8) to include torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture). This wording reflects that contained in European Convention on Human Rights, Article 3.
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R v Fulling [1987] QB 426, 85 Cr App R 136- The Court of Appeal held that ‘oppression’ in s.76(2)(a) should be given its ordinary dictionary meaning:
‘The Oxford English Dictionary as its third definition of the word runs as follows: “exercise of authority or power in a burdensome, harsh, or wrongful manner; unjust or cruel treatment of subjects, inferiors, etc., or the imposition of unreasonable or unjust burdens.” One of the
quotations given under that paragraph runs as follows: “There is not a word in our language
which expresses more detestable wickedness than oppression.” We find it hard to envisage any
circumstances in which such oppression would not entail some impropriety on the part of the
interrogator.
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Oppression is subjective
What might be oppressive to one person might not be oppressive to another, so it is legitimate to
consider the character and attributes of the accused. Once the defence represent that the confession was obtained by oppression, or the court chooses to act of its own motion under s.76(3), the prosecution must prove beyond reasonable doubt that
it was not so obtained. If the prosecution cannot prove beyond reasonable doubt that the confession was not obtained by oppression, then the confession must be excluded as inadmissible evidence and this applies even if the confession may have been true.
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Judge satisfied beyond reasonable doubt
If, however, the judge is satisfied beyond reasonable doubt that the confession was not obtained
by oppression (and is therefore admissible), this does not prevent the defence during the trial seeking to discredit the same evidence by cross-examination and making reference to it in their closing speech, ie that it was obtained by oppression and is therefore unreliable. Of course, it
would then be for the jury to decide for themselves whether to rely upon the alleged confession or not.
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4.4 Limb 2 – Exclusion for unreliability – s.76(2)(b)
Section 76(2)(b) provides that:
* where it is represented to the court that
* the confession was or may have been obtained in consequence of anything said or done
* which was likely, in the circumstances existing at the time, to render unreliable any confession
which might be made by him in consequence thereof
* the court shall not allow the confession to be given in evidence against him
* except insofar as the prosecution proves to the court beyond reasonable doubt that the
confession (notwithstanding that it may be true) was not obtained as aforesaid
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4.5 How to approach s.76(2)(b) cases
The Court of Appeal in R v Barry [1991] 95 Cr App R 384 set out the approach to adopt in cases
involving s.76(2)(b). Where a defendant alleges that their confession is unreliable within s.76(2)(b) PACE, the correct approach is:
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Step 1
First, to identify the thing said or done, which requires the trial judge to take into account everything said and done by the police
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Step 2
Secondly, to ask whether what was said and done was likely in the circumstances to render
unreliable a confession made in consequence. The test is objective taking into account all the
circumstances
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Step 3
Thirdly, to ask whether the prosecution has proved beyond reasonable doubt that the
confession was not obtained in consequence of the thing said and done, which is a question of
fact to be approached in a common sense way.
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4.6 1. Identify the thing said or done
The first step is to identify the thing said or done. There are numerous examples of what the thing said or done can be. These can be positive acts, such as a promise, inducement or trick. Examples are:
* a promise to release someone promptly from police custody only if they ‘tell all’; or
* a promise of bail from the police station conditional on a full and frank confession; or
* a threat to arrest a suspect’s partner or other family members if the suspect does not ‘cooperate’.
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Can be omission or failure to act
The thing said or done can also be an omission or failure to act, such as interviewing a young or
mentally vulnerable suspect without an appropriate adult. The thing said or done must not simply be something from the suspect, but from something external to the person. A suspect who makes an admission because they consider this is likely to get them bail (when the suspect has not been induced into believing this) cannot subsequently
rely on s.76(2)(b)
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Breach of PACE Code C
Often when s.76(2)(b) is invoked the defence will be submitting that what was said or done was
itself a breach of PACE Code C – the Code of Practice for the Detention, Treatment and
Questioning of Persons by Police Officers. Code C contains numerous provisions concerning the
detention and questioning of suspects; these include the right not to be held incommunicado, the
right to legal advice and the right to be cautioned prior to being questioned. Code C also
contains provisions regarding the right to appropriate rest at the police station and the right (for
juveniles, the mentally disordered and the mentally vulnerable) to an appropriate adult. This is not
to say that the thing said or done will always include an alleged breach of Code C, or that it must
involve such a breach, but it will often do so.
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Amounts to both oppression and 'anything said or done'
There will be occasions where the conduct of the police or other investigator amounts both to
‘oppression’ within s.76(2)(a) and to ‘anything said or done’ within s.76(2)(b). These provisions are disjunctive and therefore either or both can be used to challenge a confession depending on the circumstances of the particular case.
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4.7 2. Ask whether what was said and done was likely in the circumstances to render unreliable a confession made in consequence
Having established what was said or done, the second step is to ask whether what was said or done was likely in the circumstances to render unreliable a confession made in consequence.
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Application is made under s.76(2)(b)
When an application is made under s.76(2)(b) the court does not consider the reliability of the
confession which has been made, but a hypothetical question – the court must decide whether
there is a likelihood that any confession would be unreliable in the circumstances prevailing at the
time (R v Gill [2004] EWCA 3245).
Re Proulx [2001] 1 All ER 57
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Mance LJ stated:
The test is not whether the actual confession was untruthful or inaccurate. It is whether whatever was said or done was, in the circumstances existing at the time of the confession, likely to have rendered such a confession unreliable.’
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4.7.1 What does ‘unreliable’ mean?
R v Crampton [1990] 92 Cr App R 369, CA Stuart-Smith LJ put it as follows:
‘The word “unreliable”, in our judgment, means “cannot be relied upon as being the truth”.
What the provision of subsection 2(b) is concerned with is the nature and quality of the words spoken or the things done by the police which are likely to, in the circumstances existing at the time, render the confession unreliable in the sense that it is not true. It is quite plain that if those acts and words are of such a quality, whether or not the confession is in fact true, it is inadmissible.’
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Test is objective
The test is an objective one taking into account all the circumstances. For example, even if the police were not aware at the time of the need to call an appropriate adult (and as such are not deliberately breaching the provisions of PACE Code C), if the suspect was in fact mentally vulnerable and should, therefore, have had the assistance of an appropriate adult and – viewed
objectively – the absence of an appropriate adult would have been likely to render any confession
unreliable, then the confession should have been excluded under s.76(2)(b).
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In Gill it was put this way:
The relevant question is whether, having regard to the purpose for which an appropriate adult
is required, the absence on this occasion of the protection which such presence would have
provided is likely to have rendered any confession made at that time unreliable.’
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4.8 Examples of unreliable confessions
4.8.1 Deprivation of sleep
R v Trussler [1988] Crim LR 446
The defendant had been 18 hours without rest prior to his confession during interview. This was a clear breach of Code C and his confession was unreliable and should have been excluded under s.76(2)(b) PACE
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4.8.2 Failure to caution
R v Doolan [1988] Crim.L.R. 747, CA
The appellant argued that there had been breaches of PACE Code C during his robbery trial and
that his interview containing a confession should have been excluded. Amongst other things there had been a failure to caution the appellant at interview or to remind him of an earlier caution. The
court held that the confession had been wrongly admitted – the failure to caution was likely, in the circumstances existing at the time, to render the confession unreliable
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4.8.3 Denial of access to legal advice
R v McGovern (1990) 92 Cr App R 228, CA When she was arrested for murder, the appellant was 19 years old and 6 months pregnant. She
was of limited intelligence. She was refused access to a solicitor in breach of Code C. She was ill, distressed and not readily able to understand the caution. During her first interview she confessed to taking part in the killing. During her second interview she made further admissions in the
presence of a solicitor. She was convicted of manslaughter at trial
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Appeal - Confessions should be excluded
On appeal against her conviction, she argued that her confessions should have been excluded. The Court of Appeal allowed the appeal on the basis that the first confession was made as a result of a denial of access to a solicitor and was therefore likely to be unreliable under s.76(2)(b)
PACE, even though it was later admitted to be true. Concerning the second interview, the court found that because the first interview was conducted in breach of Code C the subsequent interview was similarly tainted.
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4.9 3. Ask whether the prosecution has proved beyond reasonable doubt that the confession was not obtained in consequence of the thing said and done (s.76(2)(b))
Having identified the thing said or done and whether what was said and done was likely in the circumstances to render unreliable a confession made in consequence, you must now ask whether the prosecution has proved beyond reasonable doubt that the confession was not obtained in consequence of the thing said and done. As stated in Barry [1991] 95 Cr App R 384, this is a question of fact for the judge and must be
approached in a common sense way
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4.9 3. Ask whether the prosecution has proved beyond reasonable doubt that the confession was not obtained in consequence of the thing said and done (s.76(2)(b))
By way of reminder, Defence Counsel will be acting on the instructions from the defendant or
from other evidence. Once it is represented by Defence Counsel to the court that the confession
‘was or may have been obtained’ by anything said or done which was likely in the circumstances
to render any confession unreliable (s.76(2)(b)), ‘the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as
aforesaid.
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4.10 Evidence discovered as a result of an excluded confession
PACE s.76(4)
Section 76(4) PACE provides: the fact that a confession is wholly or partly excluded in pursuance
of this section shall not affect the admissibility in evidence—
’(a) of any facts discovered as a result of the confession; or
(b) where the confession is relevant as showing that the accused speaks, writes or expresses himself in a particular way, of so much of the confession as is necessary to show
that he does so.
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4.10.1 Facts discovered – section 76(4)(a)
Even where a confession is excluded, this does not prevent facts discovered as a result of it being
relied upon in evidence. If, for example, the police locate the body of a murder victim following the
confession of a defendant, even if that confession is excluded under s.76(2)(a) or (b), the fact of
the discovery of the body in that place is still admissible under s.76(4)(a). There is, therefore, no rule excluding the ‘fruit of the poisoned tree’.
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4.10.1 Facts discovered – section 76(4)(a)
However, in these circumstances it would not be open to the prosecution to suggest that the body
was discovered by reason of something said by the defendant (eg ‘Members of the jury, we cannot tell you what the defendant said, but as a result of what the defendant said the police discovered the body of the deceased.’). To do so would be to circumvent the exclusion of the
confession itself.
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This rule is contained in s.76(5) PACE:
’Evidence that a fact to which this subsection applies was discovered as a result of a statement made by an accused person shall not be admissible unless evidence of how it was discovered is given by him or on his behalf.’
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4.10.2 The speech, writing or expressions of the accused – section 76(4)(b)
Section 76(4)(b) concerns situations where, even though the words of the confession have been excluded, the prosecution wants to use such part of the confession as is necessary to show the accused speaks, writes or expresses himself in a particular way.
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R v Nottle [2004] EWCA Crim 599
The appellant was convicted of criminal damage by scratching ‘F*ck you Jutin’ on a number of
cars. The most potent piece of evidence against him derived from what had emerged when the
appellant had attended a police interview with his solicitor. The interviewing officer said this: ‘On
four of the cars was some writing. I want you to write it for me. It does not matter the style of the
writing, how it is spelt, just make it as you see fit. The words are: “F*ck you, Justin”.’ The officer
said that he wanted it written out 12 times. The appellant then wrote out the words ‘F*ck you Jutin’
and later admitted during the course of the interview that he spelt the word ‘Justin’ J-U-T-I-N. The
defence applied to exclude the evidence under s.76 but the judge refused to exclude it.
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R v Nottle [2004] EWCA Crim 599
On appeal it was held that under s.76(2)(b) PACE there was nothing said or done which was likely,
in the circumstances existing at the time, to render what was said in interview unreliable. In any
event, the words could be relied upon to show how Nottle spelt ‘Justin’ under the provisions of
s.76(4)(b). There was no error or unfairness to Nottle in the admission of the evidence given in
interview as to how he spelt the name ‘Justin’. In any event, even if what was said otherwise was to
be excluded under s.76, the words could be relied upon to show how the appellant spelt ‘Justin’
under the provisions of s.76(4)(b).On appeal it was held that under s.76(2)(b) PACE there was nothing said or done which was likely,
in the circumstances existing at the time, to render what was said in interview unreliable. In any
event, the words could be relied upon to show how Nottle spelt ‘Justin’ under the provisions of
s.76(4)(b). There was no error or unfairness to Nottle in the admission of the evidence given in
interview as to how he spelt the name ‘Justin’. In any event, even if what was said otherwise was to
be excluded under s.76, the words could be relied upon to show how the appellant spelt ‘Justin’
under the provisions of s.76(4)(b).
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4.11 Summary
* s.82(1) PACE – ‘“confession”, includes any statement wholly or partly adverse to the person
who made it, whether made to a person in authority or not and whether made in words or
otherwise.’
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4.11 Summary
* This section considered the main provision through which the admissibility of a confession can
be challenged, s.76 PACE. There are two main ways under s.76 to challenge a confession:
- under s.76(2)(a)- ‘oppression’; or
- under s.76(2)(b)- ‘anything said or done which was likely, in the circumstances existing at
the time, to render unreliable any confession which might be made by him in consequence
thereof’
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4.11 Summary
* Aside from a defence challenge, the court under s.76(3) can require the prosecution to prove
that the confession was not obtained as set out in s.76(2)(a) or (b).
* Even where a confession is excluded, this does not prevent facts discovered as a result of it
being relied upon in evidence (section 76(4)(a)) nor does it prevent the prosecution using part
of the confession if necessary to show the speech, writing or expressions of the accused
(section 76(4)(b))
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5 Excluding confessions – s.78
5.1 Section 78 PACE and confession evidence
Section 78 Police and Criminal Evidence (PACE) Act 1984
Exclusion of unfair evidence
‘(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the
circumstances, including the circumstances in which the evidence was obtained, the admission
of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
(2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.’
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5.2 Applications to exclude confessions under s. 76 and/or s. 78
It is perfectly appropriate and common practice for the defence to seek to exclude evidence of a
confession under s.76 and, as an alternative, s.78.
Beeres v Crown Prosecution Service [2014] EWHC 283 (Admin)
The defence practice to seek to exclude evidence of a confession under s.76 and s.78 was
considered in this case concerning PACE Code C breaches
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In giving judgment Green J stated:
‘Finally, the position under s.78 PACE 1984 which concerns fairness will not normally differ from that based upon the application to the same facts of s.76 PACE 1984: see Gill para [68(5)]
where the court concluded that on the facts of the case no difference between ss.76 and 78 PACE 1984 arose
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In giving judgment Green J stated:
Mr Rasiah accepted, however, that s.78 could in principle exert a broader protective sweep than s.76 and therefore that it acted as an override protection for a detainee. He gave by way of example the hypothetical case of a detainee who was woefully deprived of adequate legal advice but in circumstances where it could not be said that an interview without legal
representation was “likely to render any confession unreliable
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In giving judgment Green J stated:
He said that s.78 PACE 1984
might nonetheless intervene to exclude the confession in order to reflect the fact that s.78
incorporates broader Article 6 (ECHR) type considerations and a court might reflect the
seriousness of the violation in an order excluding the confession. It seems to me that in
principle this is correct: s.78 PACE and the common law will enable a court to examine a case,
including one also engaging s.76, from a perspective of overall fairness. Hence in principle a
tailpiece to any s.76 application as to reliability will be a “fairness” appraisal. The fact that
there may be substantial overlap and that a s.76 analysis might normally indicate the result of
a fairness test does not mean that the two tests are always or necessarily identical and that
s.76 precludes the operation of s.78 PACE 1984.’
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5.3 Example of exclusion under s.78
R v Keenan [1990] 2 Q.B. 54; 90 Cr App R 1
The Court of Appeal held that evidence of a confession should have been excluded under s.78 due
to significant and substantial breaches of Code C which caused unfairness to the appellant. The
appellant had been charged with possessing an offensive weapon recovered from a car. The defence case was that the appellant had only recently purchased the car and had no idea the weapon was there. The prosecution relied on a confession (which the appellant denied making) that he knew about the weapon. The confession was allegedly made to police officers in the charge room at the police station
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5.3 Example of exclusion under s.78
R v Keenan [1990] 2 Q.B. 54; 90 Cr App R 1
At trial the defence objected to the admissibility of this confession on the basis of a number of breaches of Code C (commonly known as the ‘verballing’ provisions of the code) which included requirements to make a record of any interview and to allow a suspect the opportunity to read the record of the interview and to sign it as correct or to indicate the respects in which he considered it inaccurate. The defendant was convicted after the judge allowed the confession to be admitted.
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Hodgson J said that Code C:
Addresses two main concerns. First, it provides safeguards for detained persons and provides for their proper treatment with the object of ensuring that they are not subjected to undue pressure or oppression. Equally importantly, these code provisions are designed to make it
difficult for a detained person to make unfounded allegations against the police which might otherwise appear credible
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Hodgson J said that Code C:
Second, it provides safeguards against the police inaccurately recording or inventing the
words used in questioning a detained person. These practices are compendiously described by
the slang terms “to verbal” and “the verbals”. Again, equally importantly, the provisions, if complied with, are designed to make it very much more difficult for a defendant to make
unfounded allegations that he has been “verballed” which appear credible.’ He continued, ‘We think that in cases where there have been “significant and substantial”
breaches of the “verballing” provisions of the code, the evidence so obtained will frequently be
excluded.’
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Unfairness caused to appellant
The court went on to explain that unfairness had been caused to the appellant; he had been put
at a substantial disadvantage because, amongst other things, he had been denied the
contemporaneous opportunity to correct any accuracies in what the police alleged he had said.
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R v Keenan
The R v Keenan case is helpful in highlighting the importance of the Codes of Practice in
safeguarding not only the interests of a suspect but also the interests of the police when it comes to confession evidence.
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R v Keenan
If, for example, a suspect confesses to an offence outside a formal interview at a police station,
the requirements under Code C are that a record of the confession is made (and timed and signed by the maker) and the suspect is asked to read the record and sign it as correct or indicate how the suspect considers it inaccurate, and that the confession is put to the suspect at the commencement of the interview at the Police Station when the suspect should be asked to confirm
or deny it. These measures allow the suspect to deal with the alleged confession at the time it is
said that the suspect made it. They also provide some measure of protection for the police should
it be suggested subsequently that they invented the confession.
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Irregularly obtained does not mean inadmissable
It is worth bearing in mind that simply because evidence has been irregularly obtained (for
example, in breach of the codes) does not per se render it inadmissible. The key test for the court in deciding whether to exclude prosecution evidence under s.78 is
whether the admission of the evidence would have such an adverse effect on the fairness of the
proceedings that the court ought not to admit it. The court is not concerned with marking its disapproval of police conduct by excluding evidence,
or otherwise seeking to punish the prosecution for the way in which evidence has been obtained,
it is simply concerned with whether fairness dictates that the evidence should be excluded in the
circumstances.
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Unfairly prejudiced
However, where there has been bad faith on the part of the police when acting in breach of PACE or the Codes of Practice that is a factor which is likely to lead to exclusion of the evidence. The court will consider how, if at all, the defendant has been unfairly prejudiced.
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5.4 Summary
This section considered when it is appropriate to make applications to exclude confessions under
s. 76 and/or s. 78 PACE:
* The key test for the court in deciding whether to exclude prosecution evidence under s.78 is
whether: the admission of the evidence would have such an adverse effect on the fairness of
the proceedings that the court ought not to admit it.
* Simply because evidence has been irregularly obtained (for example, in breach of PACE or the
Codes of Practice) does not per se render it inadmissible.
* It is perfectly appropriate and common practice for the defence to seek to exclude evidence of
a confession under s.76 and, as an alternative, s.78.
* s.78 PACE allows the court to examine a case from a perspective of overall fairness and can in
principle offer broader protections to the defendant than s.76
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6 Excluding confessions – applications
6.1 Making or challenging applications to exclude confessions
This section considers the practical steps required to make an application to exclude evidence of a
confession in a criminal trial.
The four key aspects to making an application are:
* advance notification;
* timing;
* voir dire; and
* submissions.
Each of these will be considered in turn.
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6.2 Advance notification
Criminal Procedure and Investigations Act 1996, section 6A requires that a defence statement
(optional in a magistrates’ court and mandatory in the Crown Court cases only) should include any points of law, including any point as to the admissibility of evidence. At the Plea and Trial Preparation Hearing or Further Case Management Hearing at the Crown Court, the judge will
review the Defence Statement and is likely to order, with time limits, the defence to serve a skeleton argument in support of any s.76/78 arguments and the prosecution to serve a response to the same. The judge will also direct when the arguments will be heard.
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Time Limits for Skeleton Arguments
When dealing with case management in a magistrates’ court, standard case preparation time limits require any defence skeleton argument in support at least 10 business days before trial and the prosecution response 5 business days after that. It should be noted that these time limits are contained on the magistrates’ court ‘Preparation for Effective Trial’ form and not within any specific criminal procedure rule, although Criminal Procedure Rule 1.1 contains the ‘overriding
objective’ which includes dealing with cases efficiently and expeditiously
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6.3 Timing
In the Crown Court, the application to exclude the confession can be made at a pre-trial hearing listed specifically for this purpose or it can be dealt with just prior to opening the case to the jury (and in the absence of the jury). Making an application prior to trial would be most suitable either if the prosecution needs to know
if the confession is admissible or not in order to open its case in a full and meaningful way, or if the result of the legal argument will be decisive as to whether the prosecution can continue with its case, such as where the confession is the only significant evidence in its possession.
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6.3 Timing
Alternatively, the application can be made during the trial itself where there is no pressing need to
deal with it at the outset. When the prosecution is on notice that the defence are challenging the
admissibility of evidence, it is incumbent on it not to adduce that evidence before the court or to
refer to it in an opening speech.
In a magistrates’ court, any application under s.76 should be dealt with as a preliminary issue.
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6.4 Voir dire
Where a challenge is raised under s.76(2)(a) and/or (b) the prosecution must prove beyond reasonable doubt that the confession was not obtained by:
(a) oppression; and/or
(b) by anything said or done which was likely in the circumstances to render any confession
unreliable.
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6.4 Voir dire
Where the facts on both sides are disputed the judge will have to make findings of fact. This is
done by way of a hearing called a voir dire (also known as a ‘trial within a trial’) where evidence is
called. During the voir dire the prosecution will call its evidence. The defence likewise are entitled to call
evidence on a voir dire. Having heard the evidence, the judge will then resolve the disputed facts
before ruling on the admissibility of a confession. A voir dire takes place in open court in the presence of the defendant and (when taking place in the Crown Court) in the absence of the jury.
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6.4 Voir dire
If a judge fails to resolve disputed facts on a voir dire before ruling on the admissibility of a
confession, even where not specifically invited to do so, any resulting conviction is likely to be
quashed because it is logically impossible for a judge to be satisfied that the prosecution has
proved beyond reasonable doubt that a confession has not been or might not have been obtained
by either of the means set out in s.76(2)(a) or (b) if the judge has heard no evidence either way.
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Consider Application under s 76
In a magistrates’ court, the magistrates should consider an application under s.76 as a
preliminary issue and should, where the relevant evidence is in dispute, hear evidence to resolve the matter. If they decide to exclude the evidence, they are then (being judges of both fact and law) required to exclude from their minds the excluded confession evidence, a ‘position in which justices are commonly placed and one with which they are well capable of coping both by training and by disposition.’ (Hayter v L [1998] 1 WLR 854, QBD, Poole J.)
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Consider Application under s 76
In a magistrates’ court,
where the application is under both s.76 and s.78 and the evidence is disputed, the magistrates
should hear evidence on the matter and decide the applications as a preliminary issue. If,
however, the application in a magistrates’ court is only under s.78, the magistrates have a
discretion to hear all the evidence in the usual way and decide upon its admissibility at a later
stage.
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Voir dire in the Crown Court
In the Crown Court a voir dire is required where the application is made under s.76 (or both s.76
and s.78) and the evidence founding the application is in dispute.
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6.5 Submissions
A voir dire is only required if a factual matter relating to the substance of the legal argument requires resolution for the argument to proceed. If the background facts are agreed then there is no need for a voir dire and the legal argument
can be made on the agreed factual basis.
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For example, where the defence rely for their s.76 argument on Code C breaches and the
prosecution agrees these breaches occurred (but simply wish to argue they do not amount to oppression/unreliability), there will be no need for the prosecution to call evidence. At the hearing the defence will make their submissions on s.76 and, should they wish, s.78. They will do this orally, relying also on any previously submitted skeleton argument. The prosecution will respond, first making submissions to demonstrate beyond reasonable doubt that the confession was not
obtained within s.76(2)(a) or (b) and, secondly, to deal with any defence s.78 arguments. Having
considered the submissions, the judge would then make a ruling in open court.
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6.5 Submissions
If the ruling was to exclude the confession, the prosecution could not refer to it during the trial. If the effect of an excluded confession was to deprive the prosecution of its only real evidence in the case, it would have no option but to offer no evidence against the defendant which would result in a ‘not guilty’ verdict being entered.
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6.5 Submissions
If the judge concluded that the confession was admissible, the prosecution would be entitled to
adduce it. However, this would not deprive a defendant of raising the same issues before a jury.
For example, a defendant suggests that their confession was unreliable because of threats during
interview. A voir dire is held and the interviewing officers give evidence. The defendant also gives
evidence. The defence and prosecution make their submissions. Having listened to the evidence
and submissions, the judge is sure that the threat did not occur. T
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The judge is sure s.76(2)(a) and
(b) do not apply and the judge also refuses to exclude the confession under s.78. As such, the prosecution can adduce the confession. In these circumstances the defence can still put the same allegations (namely the threats) to the police during the trial itself. It will then be for the jury (who
are the judges of the facts) to decide whether they consider this to be a confession they can actually rely upon.
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6.6 Summary
This section considered the practical steps required to make an application to exclude evidence of
a confession in a criminal trial.
* If the ruling excludes the confession, the prosecution can not refer to it during the trial.
* If the judge concludes that the confession is admissible, the prosecution would be entitled to
adduce it. However, this would not deprive a defendant of raising issues of oppression, unreliability or unfairness before a jury for them to decide whether to rely on the confession.
* The following summarises the practical steps required to make an application to exclude
evidence of a confession in a criminal trial in the:
- Magistrates’ court; and
- Crown Court.
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In the magistrates’ court:
* Advance notification: any defence skeleton argument in support at least 10 business days before trial and the prosecution response 5 business days after that.
* Timing: In a magistrates’ court, any application under s.76 should be dealt with as a preliminary issue.
* Voir dire: where the application is under s.76 or both s.76 & s.78 and the evidence is disputed,
the magistrates should hear evidence on the matter and decide the applications as a preliminary issue. If, however, the application in a magistrates’ court is only under s.78, the magistrates have a discretion to hear all the evidence in the usual way and decide upon its admissibility at a later stage
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In the Crown Court:
* Advance notification: generally at the PTPH, the judge is likely to order, when the defence is to
serve a skeleton argument in support of any s.76/78 arguments, when the prosecution serve a
response and when the arguments will be heard.
* Timing: the application to exclude the confession can be made at a pre-trial hearing listed
specifically for this purpose or it can be dealt with just prior to opening the case to the jury
(and in the absence of the jury).
* Voir dire: required where the application is made under s.76 (or both s.76 and s.78) and the
evidence founding the application is in dispute.
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7 Hearsay
7.1 Evidential principles
7.1.1 Relevance
Subject to the exclusionary rules, all evidence, which is sufficiently relevant to the facts in issue, is
admissible. All evidence which is irrelevant to the facts in issue should be excluded
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7.1.2 Excluding evidence
It does not follow that all relevant evidence is admissible. If an exclusionary rule applies it does
not matter how relevant the evidence in question may be, it will be inadmissible.
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7.1.3 Hearsay
The rule against hearsay states that a statement made out of court may not be presented inevidence as proof of i ts contents. The general rule is that hearsay is inadmissible which is an example of an exclusionary rule
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7.2 Tackling potential hearsay
The exclusionary rule as it relates to hearsay evidence is one that causes problems for many practitioners of criminal law, even those who are very experienced. It is important to address possible hearsay evidence in a structured manner. There are two questions to be asked and they must be kept separate. Any attempt to tackle both questions at once will lead to confusion.
(a) Does the evidence fall within the definition of hearsay evidence? If the answer to this question
is ‘yes’, then it is prima facie inadmissible.
(b) Does it fall within one of the exceptions to the general exclusionary rule?
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7.3 History and rationale
The common law excluded statements other than statements made in oral evidence given in court
from being admitted as evidence of the truth of their contents.
The main reason for this was that the maker of the out of court statement was not available to be cross-examined so the quality of the evidence could not be tested.
For example, in D’s trial for the murder of V, A gives evidence that B said that D killed V. The problem is that only A is in court to be cross-examined. There is no way of testing the credibility of B’s statement
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History and Rationale
B may have had a motive for wanting to get D into trouble. B may be passing on what someone
else said. B may simply be mistaken. What B said may have been misunderstood. In any event, it could not be safe for a conviction to be founded on this evidence. To avoid unfairness, the common law developed a number of exceptions to the general rule where it appeared that hearsay evidence could properly be relied on. There was, however, no general ‘interests of justice’ rule whereby hearsay evidence could be
admitted until the coming into force of the Criminal Justice Act (CJA) 2003, s.114(1)(d)
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7.3 History and rationale
Some of the pre-2003 case law involves appellate courts taking a broad view of the rules in
order to avoid an unfair outcome.
Because hearsay evidence cannot be tested by cross-examination in court, there is an obvious risk of unfairness to the defendant where it is admitted. That risk gets greater as the importance of the hearsay evidence to the prosecution case increases. The ECHR Article 6 right to a fair trial may be engaged where hearsay evidence is admitted.
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7.4 Fair trial
The UK Supreme Court and the European Court of Human Rights have considered the effect of
hearsay evidence on the fairness of trials. The principles that emerge from the decided cases are:
* The UK statutory framework for the admission of the evidence of absent witnesses is sufficient,
properly applied, to provide for a fair trial.
* The court must always be satisfied that there is a sufficient basis for the absence of the
witness and that a fair trial will be possible.
* It will be harder for the court to be satisfied that a fair trial will be possible if the evidence of
the absent witness is the sole or decisive evidence against the accused
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7.4 Fair trial
* Where the hearsay evidence is critical to the case, the question of whether there can be a fair
trial depends on three principal factors:
- Whether there is a good reason to admit the evidence pursuant to the CJA 2003;
- Whether the evidence can be shown to be reliable; and
- The extent to which counterbalancing measures have been properly applied, eg
exclusionary discretion, proper directions to the jury in summing up.
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7.5 The Criminal Justice Act (CJA) 2003
There is a general rule that hearsay evidence is inadmissible. Section 114 CJA 2003 provides that hearsay is admissible if, but only if, it falls within one of the exceptions in s.114(1).
Section 114(1) CJA 2003 reads:
‘114 Admissibility of hearsay evidence
(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if—
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7.5 The Criminal Justice Act (CJA) 2003
(a) any provision of this Chapter or any other statutory provision makes it admissible,
(b) any rule of law preserved by section 118 makes it admissible,
(c) all parties to the proceedings agree to it being admissible, or
(d) the court is satisfied that it is in the interests of justice for it to be admissible.‘
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7.6 Statements and matters stated
Section 115 CJA 2003 reads:
’115 Statements and matters stated
(1) In this Chapter references to a statement or to a matter stated are to be read as follows.
(2) A statement is any representation of fact or opinion made by a person by whatever means;
and it includes a representation made in a sketch, photofit or other pictorial form.
(3) A matter stated is one to which this Chapter applies if (and only if) the purpose, or one of
the purposes, of the person making the statement appears to the court to have been—
(a) to cause another person to believe the matter, or
(b) to cause another person to act or a machine to operate on the basis that the matter is as
stated.’
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7.7 Is it hearsay?
Key case: R v Twist [2011] EWCA Crim 1143.
The effect of s.114(1) and s.115 taken together was considered in R v Twist.
The Court of Appeal reformulated the sections as a test that determines whether or not acommunication is hearsay. It is in three parts:
(a) Identify what relevant fact (matter) it is sought to prove.
(b) Ask whether there is a statement of that matter in the communication.
- If no, then no question of hearsay arises (whatever other matters may be contained in the
communication).
(c) If yes, ask whether it was one of the purposes (not necessarily the only or dominant purpose)
of the maker of the communication that the recipient, or any other person, should believe
that matter or act upon it as true.
- If yes, it is hearsay.
- If no, it is not.
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7.8 Not hearsay
* Private diary – It follows from the definition of hearsay that anything written in a private diary
where the writer did not intend that anyone else should ever read it cannot be hearsay. This is
because there is no intention on the part of the maker of the statement that any other person
should believe anything.
* CCTV – section 115(2) contains the words ‘... made by a person ...’, so no issue of hearsay
arises where the piece of evidence in question was created entirely by a device such as a
CCTV system without any human input.
* Questions – Where there is no statement of a matter, eg where the communication consists
only of the asking of a question, the court in Twist thought that no issue of hearsay could arise.
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7.8 Not hearsay
In Twist the communications in question were text messages received by the defendant asking for
drugs. There was no statement that he was a drug dealer (which was the matter that the
prosecution sought to prove), so the messages were not hearsay and were admissible. The court
went on to say that even if on these facts there was an implied statement that the recipient of the
messages was a drug dealer, it was certainly not the intention of the sender of the message to
make the recipient believe that fact. Applying s.115(3) means that on that interpretation the messages are still not hearsay
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To show the effects of words
In general, if the purpose of adducing evidence of words spoken out of court is to show the effect that the words had on the person to whom they were said, rather than to show the truth of what was said, the evidence is not hearsay. Therefore where a defendant wants to reveal solicitor’s advice to show why a “no comment” interview was given,
that evidence is not hearsay.
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Legally significant words
Where the words spoken have significance as a matter of law, they
are not hearsay. Therefore an offer of sexual services in exchange for money is admissible to show that the premises on which the words were spoken is a brothel. In this example the making of the offer is itself part of the definition of “brothel”.
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Falsehoods
– It follows from the definition of hearsay in s.114 that there can be no hearsay where a party adduces evidence of what was said out of court while asserting that it is not
true. Therefore the prosecution can give evidence of the defendant giving a false alibi to show that the defendant was trying to avoid being convicted of the offence.
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7.9 Hearsay and original evidence
Very often evidence of words spoken out of court will be admissible as original evidence. In many cases the purpose of the party adducing the evidence will be to show that the words were spoken, rather than that they were true. If that is the case, the evidence is not hearsay because it is not being admitted as ‘evidence of any matter stated’. Original evidence can also be adduced to show the state of mind of the maker of the statement.
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7.9 Hearsay and original evidence
Examples of original evidence include evidence of threats made to a person. Where the threat is
along the lines of, ‘if you don’t do what I say, I shall harm you’, the evidence is usually being
adduced to show that the threat was made, not that the maker of the threat would indeed cause
harm to the person addressed.
In Ratten v R [1972] AC 378 the defence to an allegation that D murdered his wife was that the gun
had gone off by accident. Evidence of a 999 call made by the deceased shortly before the killing
was admitted to show that she was in a distressed state at that time
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7.10 Summary
This section provided an introduction to hearsay, as distinguished from original evidence:
* The rule against hearsay states that a statement made out of court may not be presented in
evidence as proof of its contents. The general rule is that hearsay is inadmissible which is an
example of an exclusionary rule. However, section 114 CJA 2003 provides that hearsay is admissible if, but only if, it falls within one of the exceptions in s.114(1)
205
When addressing hearsay, ask these two questions:
(i) Does the evidence fall within the definition of hearsay evidence? If the answer to this
question is ‘yes’, then it is prima facie inadmissible.
(ii) Does it fall within one of the exceptions to the general exclusionary rule?
* Use the three part test in R v Twist [2011] to determine whether a communication is hearsay.
* The ECHR Article 6 right to a fair trial may be engaged where hearsay evidence is admitted
206
8 Hearsay – exceptions
8.1 Exceptions to the exclusionary rule
A statement is hearsay if:
* it is made out of court; and
* the person that made it intended another person to believe it; and
* it is adduced as evidence of the matter stated (s.114(1) and s.115 Criminal Justice Act 2003).
207
Section 114(1) provides that hearsay is not admissible unless it falls into one of the four exceptions
to the general exclusionary rule:
* any of the statutory exceptions in the CJA 2003 apply;
* any of the common law exceptions preserved under the CJA 2003 apply (s.118 will be covering
in detail in a separate section);
* all the parties agree; or
* the court uses its statutory discretion to admit the hearsay, in the interests of justice.
208
8.2 Admissible hearsay
This section will consider some of the exceptions to the rule against hearsay in the Criminal
Justice Act 2003.
Hearsay may be admissible if:
* the witness is unavailable (s.116);
* it is a business document (s.117) – however, the court has the discretion to exclude such a
business document if it is satisfied that the statement’s reliability is doubtful (s.117(6) and (7));
or
* it is in the interests of justice to admit it (s.114(1)(d)).
Note the court has discretion to exclude unfair prosecution evidence (s.78 PACE).
209
8.3 Witness is unavailable
Section 116 reads:
’116 Cases where a witness is unavailable
(1) In criminal proceedings a statement not made in oral evidence in the proceedings is
admissible as evidence of any matter stated if—
(a) oral evidence given in the proceedings by the person who made the statement would be
admissible as evidence of that matter,
(b) the person who made the statement (the relevant person) is identified to the court’s
satisfaction, and
(c) any of the five conditions mentioned in subsection (2) is satisfied
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Witness is unavailable
The conditions are
(2) The conditions are:
(a) that the relevant person is dead;
(b) that the relevant person is unfit to be a witness because of his bodily or mental condition;
(c) that the relevant person is outside the United Kingdom and it is not reasonably practicable
to secure his attendance;
(d) that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken;
(e) that through fear the relevant person does not give (or does not continue to give) oral
evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence.’
211
The role of Section 116
Section 116 requires that the maker of the statement is identified, so it cannot be used to introduce
anonymous hearsay. It does not allow in evidence that would have been inadmissible in live evidence, such as evidence of bad character that is not admissible through one of the gateways in ss.100 or 101.
212
8.3.1 Unfitness to be a witness (s.116(2)(b))
Unfitness of a person to be a witness because of their bodily or mental condition refers not to their
fitness to physically attend court, but to their ability to give evidence once there. There is no requirement that the condition that makes a person unfit should be a medical condition. The trauma of having been the victim of a sexual assault can qualify.
213
8.3.2 Witness outside the UK and it is not reasonably practicable to secure attendance
(s.116(2)(c)) Witness cannot be found (s.116(2)(d))
In deciding whether it is reasonably practicable for the witness to attend or whether steps taken
to find the witness were reasonably practicable, the court has to consider the normal steps taken
to secure the attendance of a witness. Cost is a relevant factor and it has to be balanced against
the importance of the evidence that the witness would give. Subsection 116(2)(c) should be read as
referring to the impracticability of securing the attendance of the witness either in person or by
videolink.
214
8.3.3 Fear
’Section 116
(3) For the purposes of subsection (2)(e) “fear” is to be widely construed and (for example)
includes fear of the death or injury of another person or of financial loss.
(4) Leave may be given under subsection (2)(e) only if the court considers that the statement
ought to be admitted in the interests of justice, having regard:
215
8.3.3 Fear
’Section 116
(a) to the statement’s contents,
(b) to any risk that its admission or exclusion will result in unfairness to any party to the
proceedings (and in particular to how difficult it will be to challenge the statement if the
relevant person does not give oral evidence),
(c) in appropriate cases, to the fact that a direction under section 19 of the Youth Justice and
Criminal Evidence Act 1999 (c 23) (special measures for the giving of evidence by fearful
witnesses etc.) could be made in relation to the relevant person, and
(d) to any other relevant circumstances.’
216
No requirement that fear is caused by defendant
There is no requirement that the fear that is felt by the witness should have been caused by the
defendant. Authorities differ as to how the court should approach an enquiry as to whether the reason for the absence of a witness is fear.
In Davies [2007] 2 All ER 1070 it was said that courts are ill-advised to seek to test the basis of fear by calling witnesses before them. In later cases, especially Shabir [2012] EWCA Crim 2564 the Court of Appeal took the view that every effort should be made to get the witness to court to test the issue of ‘fear’
217
No requirement that fear is caused by defendant
It is very important that when police officers seek to persuade a witness to attend court to give evidence, they do not give the witness any assurance that their witness statement can be read to the court if they are afraid to attend. This would provide the witness with an obvious incentive to
say that they are in fear.
The court has to be satisfied to the criminal standard that the witness does not give evidence through fear. A causative link between the fear and the failure to give evidence must be
established.
218
No requirement that fear is caused by defendant
In Sellick [2005] EWCA Crim 651 the Court of Appeal made clear that where intimidation of a
witness by a defendant is either clearly proved or the court believes to a high degree of
probability that that is the case, the defendant cannot complain that the right to a fair trial has
been infringed on the basis that the defence was not able to cross-examine the witness. See also
s.116(5) of the CJA 2003
219
9 Business documents, etc
The CJA 2003, s.117 reads (in part):
’(1) In criminal proceedings a statement contained in a document is admissible as evidence of
any matter stated if:
(a) oral evidence given in the proceedings would be admissible as evidence of that matter,
(b) the requirements of subsection (2) are satisfied…
220
9 Business documents, etc
The CJA 2003, s.117 reads (in part):
(2) The requirements of this subsection are satisfied if:
(a) the document or the part containing the statement was created or received by a person in
the course of a trade, business, profession or other occupation, or as the holder of a paid or
unpaid office,
(b) the person who supplied the information contained in the statement (the relevant person)
had or may reasonably be supposed to have had personal knowledge of the matters dealt
with, and
(c) each person (if any) through whom the information was supplied from the relevant person
to the person mentioned in paragraph (a) received the information in the course of a trade,
business, profession or other occupation, or as the holder of a paid or unpaid office.
221
9 Business documents, etc
The CJA 2003, s.117 reads (in part):
(3) The persons mentioned in paragraphs (a) and (b) of subsection (2) may be the same
person.’
The wording of s.117(2)(a) is wide enough to ensure that the section covers a lot of documents that
are not in any sense business documents.
It covers, for example:
* medical records; and
* any statement written down by a police officer in the course of duty.
222
9.1 Documents prepared for criminal proceedings
There are extra rules that apply to documents prepared for the purposes of pending or
contemplated criminal proceedings.
Subsections (4) and (5) of s.117 require that for those documents to be admissible, either:
* one of the five conditions mentioned in s.116 is satisfied; or
* the person who supplied the information contained in the statement cannot reasonably be
expected to have any recollection of the matters dealt with in the statement (having regard to
the length of time since the information was supplied and all other circumstances).
223
9.1 Documents prepared for criminal proceedings
The question of whether or not a document was prepared for the purposes of pending or
contemplated criminal proceedings will usually be easy to answer once the circumstances in which the document was made are known. Generally all witness statements and all entries in police notebooks made in the course of an investigation into an alleged offence will fall within the definition.
224
9.2 Exclusion
Sections 117(6) and (7) add to the general exclusionary discretion in s.78 PACE 1984 in that they
allow the court to exclude evidence that would otherwise be admissible under s.117 if it is satisfied
that the statement’s reliability is doubtful in view of:
(a) its contents;
(b) the source of the information contained in it;
(c) the way in which or the circumstances in which the information was supplied or received; or
(d) the way in which or the circumstances in which the document concerned was created or
received
When considering whether to admit or exclude evidence through the gateways created by ss.116
and 117, the court should take into account the factors listed in s.114(2) that are relevant to decisions on admission of evidence in the interests of justice.
225
9.2 Exclusion
CJA 2003, s.114(1)(d) allows the admission of hearsay evidence where the court is satisfied that it
is in the interests of justice to admit it.
Section 114(2) requires the court when deciding whether it is in the interests of justice to admit
evidence of the following (and anything else it considers relevant):
(a) How much probative value the statement has (assuming it to be true) in relation to a matter in
issue in the proceedings, or how valuable it is for the understanding of other evidence in the
case
(b) What other evidence has been, or can be, given on the matter or evidence mentioned in
paragraph (a)
226
9.2 Exclusion
(c) How important the matter or evidence mentioned in paragraph (a) is in the context of the
case as a whole
(d) The circumstances in which the statement was made
(e) How reliable the maker of the statement appears to be
(f) How reliable the evidence of the making of the statement appears to be
227
9.2 Exclusion
(g) Whether oral evidence of the matter stated can be given and, if not, why it cannot
(h) The amount of difficulty involved in challenging the statement
(i) The extent to which that difficulty would be likely to prejudice the party facing it
The application of s.114(1)(d) should be approached with caution. It is not intended to be a way of
getting round the failure of a particular piece of evidence to fit into any of the other exceptions to
the exclusionary rule.
228
Section 114(2)
For example, an attempt to use s.114(1)(d) failed in a case where a witness was reluctant to come
to court to give evidence because she did not want to relive the trauma of the sexual assaults that
would have been the subject of her evidence. The Court of Appeal held that the prosecution was
trying to circumvent s.116, which does not recognise that reason for admitting hearsay evidence.
229
Section 114(1)(d)
Section 114(1)(d) certainly cannot be used to repair failings on the part of the party seeking to
adduce the evidence.
Where the Crown has failed to take reasonable steps to find a witness or to secure the witness’s
attendance, so that s.116(2)(c) or (d) cannot be used, they cannot fall back on s.114(1)(d) and say
that the evidence should be admitted in the interests of justice.
230
9.4 Common law exceptions
Section 118 Criminal Justice Act 2003 preserves some common law exceptions to the rule against
hearsay. This element considers the following common law exceptions:
* public information;
* evidence of reputation;
* res gestae;
* confessions;
* statements in furtherance of common enterprise; and
* body of expertise.
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9.4.1 Public information
Admissible public information includes:
* published works dealing with matters of a public nature such as dictionaries and maps;
* public documents such as public registers; and
* records such as court records and public treaties.
Also, a person may give evidence of their age and the place of their birth despite the fact that
they will have been told these things by someone else
232
9.4.2 Evidence of reputation
The common law rule allowing the admission of evidence of reputation as to character, to prove character, is preserved.
233
9.4.3 Res gestae
Section 118 also preserves the common law rule that a statement is admissible as evidence of any
matter stated if:
(a) The statement was made by a person so emotionally overpowered by an event that the
possibility of concoction or distortion can be disregarded;
(b) The statement accompanied an act which can be properly evaluated as evidence only if considered in conjunction with the statement; or
(c) The statement relates to a physical sensation or a mental state (such as intention or emotion).
R v Andrews [1978] AC 281
234
9.4.3 Res gestae
The leading case. The res gestae rule does not require that the statement is made as part of the action of the offence. What is required is that the possibility of concoction can be excluded. The court must be satisfied that the event to which the statement relates was so unusual or startling or
dramatic as to dominate the thoughts of the victim so that the utterance was an instinctive
reaction to that event. The statement must be made at a time when the mind of the person making the statement was still dominated by the event
235
9.4.3 Res gestae
Where res gestae evidence is admitted, it must be made clear to the jury that they must be
satisfied that there was no mistake on the part of the witnesses as to what had been said to them.
They must be satisfied that there was no concoction on the part of the maker of the statement.
Where there are special features that bear on the possibility of mistake, the attention of the jury
must be drawn to them.
236
Domestic Violence Cases
In domestic violence cases the res gestae exception provides the prosecution with an alternative
to s.116(2)(e) as a way of admitting the evidence of a complainant who does not give evidence at
trial. What is said by the complainant in a 999 call or to officers immediately after the alleged
incident will usually be admissible as res gestae evidence. The latter is becoming much more
important and reliable as a source of evidence now that most officers have body-worn cameras
that record both audio and video. The prosecutor can play the footage from the body-worn
device as evidence both of the demeanour of the complainant straight after the incident as of the
truth of what the complainant says.
237
9.4.4 Confessions
The common law rule to the effect that evidence of confessions is admissible is preserved.
238
9.4.5 Statements in furtherance of common enterprise
There is a broad common law rule that the statements of one party to a common criminal enterprise in furtherance of that enterprise are admissible against all the parties to the joint enterprise. This is of particular significance in conspiracy cases.
239
9.4.6 Body of expertise
The common law rule that an expert witness may draw on a body of expertise is preserved.
Without this rule, it would be impossible for experts to give evidence of any of the learning within
their field, except that which they themselves had contributed to the field.
240
9.5 Statutory exceptions – previous statements
9.5.1 Previous inconsistent statements
Section 119 CJA 2003 provides that:
* a previous inconsistent statement that a witness admits to having made; or
* a previous inconsistent statement that the witness is proved to have made is admissible as evidence of the matter stated. This is an exception to the rule against hearsay. It was introduced by the CJA 2003. Prior to the Act, previous inconsistent statements were evidence only of inconsistency.
241
9.5.2 Previous consistent statements
Sections 120(2) and 120(4) make admissible as evidence of any matter stated, previous consistent
statements admitted to rebut a suggestion of recent fabrication or as recent complaint evidence. Again, this is an exception to the rule against hearsay and was a novelty in the Act, before which such evidence was only evidence that the statements had been made.
242
9.6 Multiple hearsay
An example of an oral hearsay statement would be that a witness (‘X’) testifies to what Y said. In
contrast, an example of multiple hearsay would be X testifies to what Y said Z told Y. CJA 2003, s.121 provides that a hearsay statement is not admissible to prove the fact that an earlier hearsay statement was made unless:
243
9.6 Multiple hearsay
(a) Either of the statements is admissible under ss.117, 119 or 120;
(b) All parties to the proceedings so agree; or
(c) The court is satisfied that the value of the evidence in question, taking into account how
reliable the statements appear to be, is so high that the interests of justice require the later
statement to be admissible for that
purpose.
The effect of the rule is that multiple hearsay is never allowed through any of the exceptions in
s.116 or through any of the preserved common law exceptions in s.118.
244
9.7 Evidence affecting the credibility of admissible hearsay
Because the maker of a hearsay statement is not present in court to be cross-examined, it is
necessary to allow the person’s credibility to be challenged in other ways. CJA 2003, s.124 allows an opposing party to put into evidence anything that could have been put
to the witness to challenge credibility in cross-examination. It goes further than that in allowing
the admission of evidence as to matters on which the witness’s answers in cross-examination
would have been final.
245
9.8 Unconvincing hearsay
CJA 2003, s.125 allows the judge to stop a case where the case depends wholly or partly on
hearsay evidence and that evidence is so unconvincing that, considering its importance to the case against the defendant, the defendant’s conviction of the offence would be unsafe. Under those circumstances, the judge must either discharge the jury and order a retrial, or direct
the jury to acquit the defendant
246
9.9 Superfluous hearsay
CJA 2003, s.126 allows the court to exclude hearsay evidence that would otherwise be admissible where the admission of the evidence would result in undue waste of time.
This is a provision that can be used to exclude hearsay evidence proffered by either the prosecution or the defence. It is intended to avoid time being wasted on peripheral issues
247
9.10 Directing the jury
The jury must be reminded that a hearsay statement that has been admitted at the trial was not
given on oath and that it was not tested in cross-examination.
The risks of relying on hearsay evidence should be pointed out and the jury should be warned to
scrutinise it with particular care.
Where the court has concerns about the quality of a particular piece of hearsay evidence, the attention of the jury should be drawn to the limitations on the usefulness of that piece of evidence.
248
9.11 Hearsay procedure
Criminal Procedure Rules Part 20 applies to the admission of hearsay evidence.
Notice is required where a party intends to introduce hearsay evidence under:
* s.114(1)(d) (interests of justice);
* s.116 (witness unavailable);
* s.117(1)(c) (document prepared in contemplation of criminal proceedings); or
* s.121 (multiple hearsay).
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9.12 Notice
The notice must be served on the court and on every other party. It must:
(a) Identify the hearsay evidence
(b) Set out the facts relied on that make the evidence admissible
(c) Explain how those facts will be proved if they are disputed
(d) Explain why the evidence is admissible
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The evidence must be attached to the notice if it has not already been served.
The prosecution must serve notice not more than:
(a) 20 business days after a not guilty plea in the magistrates’ court; or
(b) 10 business days after a not guilty plea in the Crown Court.
A defendant must serve notice as soon as reasonably practicable.
251
9.13 Opposing the introduction of hearsay evidence
A party objecting to the introduction of hearsay evidence must serve an application on the court
and every other party as soon as reasonably practicable and in any event not more than 10
business days after either of the following, whichever of those happens last:
(a) Service of the notice to introduce the evidence;
(b) Service of the evidence objected to, if that is evidence for which no notice is required; or
(c) The defendant pleads not guilty
252
The application must explain: The application must explain:
(a) Which, if any, facts set out in the notice to introduce the evidence the party disputes;
(b) Why the evidence is not admissible; and
(c) Any other objection to the evidence.
253
9.14 Summary
A statement is hearsay if:
* it is made out of court; and
* the person that made it intended another person to believe it; and
* it is adduced as evidence of the matter stated (s.114(1) and s.115 Criminal Justice Act 2003).
254
Hearsay is admissible if all the parties agree or one of the exceptions apply:
the witness is unavailable (s.116);
* it is a business document (s.117)
* it falls under a common law exception (s.118);
* it is a previous inconsistent or consistent statement of a witness (ss.119 and s.120).
255
If any of the exceptions apply, the court has the discretion to exclude otherwise admissible
hearsay if:
* a business document etc and the court is satisfied that the statement’s reliability is doubtful
(s.117(6) and (7));
* by stopping the case, where the case depends wholly or partly on unconvincing hearsay
evidence (s.125);
* it is superfluous (s.126);
* it is unfair prosecution evidence (s.78 PACE).
256
9.14 Summary
If the parties don’t agree and the exceptions do not apply, the court has discretion to admit hearsay if it is in the interests of justice to admit it under: s.114(1)(d) in respect of hearsay or
s.121(1)(c) in respect of multiple hearsay.
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10 Visual identification – trial stage
10.1 Turnbull Guidelines
Key case: R v Turnbull [1977] QB 224
In R v Turnbull [1977] QB 224, the Court of Appeal issued guidelines to be followed in all cases where the case against the accused depended wholly or substantially on evidence of identification which the suspect alleged to be mistaken. In Turnbull, the Court of Appeal gave guidance:
* on what a judge should say to a jury when a case depended wholly or substantially on disputed identification evidence; and
* to judges on when identification evidence can safely be left to the jury and when a case must be withdrawn to protect the defendant from an unsafe conviction.
258
Safeguards were introduced at every stage of the criminal justice process to ensure that identification evidence before a jury is reliable as possible:
* Investigation stage: Police and Criminal Evidence Act 1984 (PACE) Code of Practice D; and
* Trial stage: Turnbull guidelines.
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10.2 When should a Turnbull direction be given?
The Court of Appeal in R v Turnbull [1977] QB 224 prescribed rules to guide judges faced with contested visual identification evidence. A Turnbull direction should be given when the case against the accused depends ‘wholly or substantially’ on the correctness of the visual identification. In essence this usually means those situations where the defendant was picked out in formal ID procedure but maintains that the witness was mistaken in that identification.
260
10.2 When should a Turnbull direction be given?
A Turnbull direction should be given even in cases of alleged recognition; many times someone has seen a stranger in the street and thought they recognised them, even when on closer inspection they discover they were wrong. If presence at the scene is admitted but the defendant disputes their role in an incident, then it is
likely that a Turnbull direction will not be required. However, each case turns on its own facts, and the court should be alive in every case to the possibility of a direction being required. This should be discussed between judge and advocates in the absence of the jury prior to speeches and summing up
261
10.3 What is a Turnbull direction?
The guidelines are aimed at assessing the quality of the identification. Where the case against an accused person depends wholly or substantially on the correctness of an identification of the
accused which the defence allege is mistaken:
* The judge should warn the jury of the special need for caution before convicting the accused in
reliance on the correctness of the identification, whenever the prosecution case against an
accused depends wholly or substantially:
- on the correctness of one or more identifications of the accused; and
- the defence alleges the identification to be mistaken.
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10.3 What is a Turnbull direction?
* This special Turnbull warning has three key elements. The judge should:
- instruct the jury as to the reason for the need for such a warning; mistaken witnesses can be convincing ones.
- direct the jury to examine the circumstances in which the identification by each witness
came to be made.
- remind the jury of any specific weaknesses in the identification evidence.
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10.4 Other evidence supporting the identification
The trial judge will direct the jury to consider if there is any other evidence to support the correctness of the identification. The trial judge should identify to the jury the evidence capable of supporting the evidence of identification. If there is any evidence or circumstances which the jury might consider to be supporting when it did not have this quality, the judge should say so.
264
Evidence capable of supporting the identification includes:
* Scientific evidence, for example footwear, facial mapping, telephone evidence
* Multiple identifications by different witnesses (as long as the identifications are of sufficient
quality so as to be left to the jury to assess)
* The accused’s bad character or previous convictions (if admissible)
* The accused’s silence on interview (if it is proper for an adverse inference to be drawn)
* The accused’s admissions at the scene / in interview / in the witness box
265
10.5 Withdrawing the case from the jury
Judges are also required to examine the state of identification evidence at the close of the prosecution case and to stop the case if it is poor and unsupported. In cases of visual identification, the judge must answer two principal questions:
* What is the quality of the identification evidence?
* Is there other evidence to support the correctness of the identification?
In assessing the quality of the identification evidence, the judge will need to consider lighting, distance, length of time of observation and qualities relating to the witness themselves, such as their eyesight.
266
10.5.1 Assessing the quality of visual identification evidence
The jury should be directed to carefully examine the surrounding circumstances of the evidence of
identification, in particular:
* the time during which the witness had the person under observation; in particular the time
during which the witness could see the person’s face;
* the distance between the witness and the person observed;
* the state of the light;
* whether there was any interference with the observation (such as either a physical obstruction
or other things going on at the same time);
267
10.5.1 Assessing the quality of visual identification evidence
* whether the witness had ever seen D before and if so how many times and in what
circumstances (i.e. whether the witness had any reason to be able to recognise D);
* the length of time between the original observation of the person (ie the incident) and the
identification by the witness of D at an identification procedure;
* whether there is any significant difference between the description the witness gave to the
police and the appearance of D.
To assist in considering the strengths and weakness of the evidence as outlined in Turnbull above,
the mnemonic ADVOKATE summarises the required checks.
268
10.6 Quality of identification evidence
When the quality of the identification is good, the jury can be safely left to assess the value of
the identifying evidence, regardless of whether there is other evidence to support it: provided
always, however, that an adequate warning has been given about the special need for
caution.
269
10.6 Quality of identification evidence
* When the quality of the identifying evidence is poor – i.e. a fleeting glance or an observation made in difficult conditions – the judge should consider whether there is other evidence to
support the correctness of the identification.
- If there is not, the judge should withdraw the case from the jury and direct an acquittal.
- If there is some supporting evidence, for example scientific evidence, then the judge can
leave the weak identification to the jury to be assessed alongside the supporting evidence.
270
10.7 Dock identification
* Identification of the defendant by a witness for the first time in court (a ‘dock identification’) is exceptional and rare.
* It is an undesirable practice, as it leaves the witness with no other alternative than the defendant and the fact that the defendant is already standing in the dock is highly prejudicial.
271
10.7 Dock identification
* A well-meaning witness may simply assume that the person responsible for the crime is the defendant because it is the defendant in the dock.
* A trial judge retains a discretion to permit a dock identification. In considering this, the judge
will need to consider whether such a course of conduct will jeopardise the fairness of the accused’s trial. For example, in a case of alleged recognition, the judge may be of the view that it would not be unjust to allow a dock identification.
272
10.8 Summary
Turnbull Guidelines – what a judge should say to a jury when a case depends wholly or
substantially on disputed identification evidence.
If the judge decides the witness evidence is so weak it would lead to an unsafe conviction, the
judge will withdraw the case from the jury and direct the jury to acquit the defendant. Without the
identification that was all or the main part of the evidence against D, there is no evidence left of
any weight for the jury to decide on.
273
10.8 Summary
If the judge decides that the evidence given by the witness at trial is strong enough to be left to the jury or is weak but supported by some other evidence, then the trial will proceed. During
summing up, the judge will explain to the jury that they must decide whether D was the person seen by the witness. At this stage the judge will give the jury a specific Turnbull warning – a direction in relation to how they should assess the weight of the identification evidence.
274
11 Bad character- introduction
11.1 Bad character definition
Bad character is defined in s.98 Criminal Justice Act (CJA) 2003 thus:
’References in this Chapter to evidence of a person’s “bad character” are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which—
(a) has to do with the alleged facts of the offence with which the defendant is charged, or
(b) is evidence of misconduct in connection with the investigation or prosecution of that offence.
275
Misconduct
Is defined in s.112 CJA 2003 as ‘the commission of an offence or other reprehensible behaviour’.
‘Reprehensible behaviour’ is not further defined in the Act, though there is case law on the issue. ‘Reprehensible’ connotes some degree of moral blameworthiness. Behaviour is not necessarily reprehensible just because it is morally lax, having an affair, for example, would not be considered
in law bad character. It is well established that evidence of membership of a gang is evidence of
reprehensible behaviour.
276
11.2 Sources of bad character evidence
Bad character may be shown by any of the following:
* Previous convictions in the UK
* Previous convictions in a foreign court where such offences have a domestic equivalent. Blasphemy, for example, would be unlikely to be considered bad character.
* Cautions
* Acquittals, where the prosecution contends that in fact the defendant was guilty of the previous offence of which D was acquitted
* Agreed facts that amount to reprehensible behaviour
* Witness evidence of a reputation for reprehensible behaviour
277
11.3 Acquittals and previous convictions
Where the prosecution relies on evidence of previous acquittals, it is open to it to assert that the
defendant did commit the offence(s) of which D was previously convicted.
The double jeopardy rule is not transgressed so long as the prosecution does not seek to have the
defendant punished for the previous offences.
278
Z [2000] 2 AC 483
In this case (a rape case where the defence was consent) it was permissible for the prosecution to
rely on four previous rape allegations where the same defence was advanced, three of which
resulted in acquittals, to show that Z had a propensity to rape and to assert that consensual
intercourse had taken place. All four previous complainants were allowed to give evidence and the
jury were entitled to assess their credibility regardless of the verdicts reached in the previous trials
279
The logical corollary
Of this position is that evidence of a previous conviction is in law a rebuttable presumption that the defendant committed the said offence thus the defendant is entitled to
adduce evidence tending to show they were wrongly convicted.
280
11.4 Conduct which falls outside s.98
Section 98 CJA 2003 specifically excludes evidence of misconduct which:
(a) Has to do with the alleged facts of the offence with which the defendant is charged; or
(b) Is committed in connection with the investigation or prosecution of that offence.
281
Does not have to satisfy conditions
Evidence which falls within the s.98 definition does not have to satisfy any of the conditions set
out in ss.100 (gateways to admissibility of non-defendant’s bad character) or 101 (gateways to admissibility of defendant’s bad character).
If a defendant tells a demonstrable lie during interview, subject to relevance, that is not a matter which would require the prosecution to make a bad character application by virtue of s.98(b)
282
Necessary as part of the prosecution case
Where it is necessary as part of the prosecution case to prove criminal conduct by the defendant
or another, evidence of that conduct will fall outside s.98.
Examples are offences of driving while disqualified where the prosecution will have to prove that
the defendant committed an earlier offence and was disqualified as a result.
283
Evidence of tampering or witness intimidation
Attempts at jury tampering or witness intimidation are examples of misconduct connected with
the investigation or prosecution of the offence, so evidence of those matters is not bad character
evidence. The decided cases seem to accept that evidence of the motive of the accused to commit the
offence is evidence that has to do with the alleged facts of the offence.
284
11.5 Summary
* A defendant or non-defendant will exhibit bad character if their behaviour falls within the definition in s.98 CJA 2003.
* Bad character may be shown in lots of different ways: previous convictions, witness evidence, agreed facts and acquittals for example.
* The bad character evidence must go through a gateway to be admissible:
- S.100(1) sets out the gateways for non-defendant bad character
- S.101(1) sets out the gateways for defendant bad character
285
11.5 Summary
* Many of the gateways require a bad character application to be made.
* Conduct is admissible without going through a gateway if it:
- has to do with the alleged facts of the offence with which the defendant is charged; or
- is committed in connection with the investigation or prosecution of that offence.
Examples include lying in police interview and jury tampering.
286
12 Bad character – defendant
12.1 Section 101: Gateways for admissibility of defendant bad character evidence
There are seven gateways through which evidence of the bad character of a defendant can become admissible. They are set out in s.101(1)(a–g) Criminal Justice Act (CJA) 2003. Evidence of bad character is admissible if, but only if, it falls within one of the gateways. Once
evidence is admitted through any one of the gateways, it can be used for any purpose for which it is relevant.
It is useful to be able to remember all the gateways. A mnemonic that might help is:
(a) Agreement
(b) Blurts it out
(c) Context
(d) Done it before
(e) ’E did it
(f) False impression
(g) Gets at the witness
287
12.2 Section 101(1)(a): Agreement of the parties
Section 101 CJA 2003:
’1 In criminal proceedings evidence of the defendant’s bad character is admissible if, but only
if, -
(a) all parties to the proceedings agree to the evidence being admissible’
There is no need to make an application to the court for leave to adduce evidence through this
gateway. There are no formal requirements as to the recording of the agreement or how it is reached. A
tacit agreement is enough.
288
12.312.3 Section 101(1)(b): Evidence adduced by the defendant
This allows defendants to introduce evidence of their own bad character.
’Section 101(1)(b) “the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it”.’
There are a number of reasons why D may wish to do so. Reasons include:
* To come clean about an old conviction in order to receive a modified good character direction
* To show that D has never been convicted of an offence of the type with which D is now charged
* To put forward a defence, e.g. to show that D was in prison at the time of the alleged offence
* To show why police officers might have a bias against D
Leave of the court is not required to adduce evidence through this gateway.
289
12.4 Section 101(1)(c): Important explanatory evidence
Section 101(1)(c): ‘it is important explanatory evidence’. ‘Important explanatory evidence’ is defined in s.102 CJA 2003 thus:
‘For the purposes of section 101(1)(c) evidence is important explanatory evidence if—
(a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and
(b) its value for understanding the case as a whole is substantial.’
290
12.4 Section 101(1)(c): Important explanatory evidence
This gateway allows the prosecution to adduce evidence of past misconduct of the defendant where it is needed to explain the prosecution case in the current trial. Often the evidence will be to show the previous relationship between people involved in the trial
without which it would not be possible to understand the narrative put forward by the prosecution. Leave of the court is required to adduce evidence through this gateway
291
12.5 Section 101(1)(d)
Section 101(1)(d):
‘it is relevant to an important matter in issue between the defendant and the prosecution’.
Section 112 says that ‘important matter’ means a matter of substantial importance in the context
of the case as a whole.
292
Section 103 further explains the meaning of s.101(1)(d):
’(1) For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include
(a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence;
(b) the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant’s case is untruthful in any respect.
293
12.5 Section 101(1)(d)
(2) Where subsection (1)(a) applies, a defendant’s propensity to commit offences of the kind
with which he is charged may (without prejudice to any other way of doing so) be established
by evidence that he has been convicted of—
(a) an offence of the same description as the one with which he is charged, or
(b) an offence of the same category as the one with which he is charged.
294
12.5 Section 101(1)(d)
(3) Subsection (2) does not apply in the case of a particular defendant if the court is satisfied, by reason of the length of time since the conviction or for any other reason, that it would be
unjust for it to apply in his case.
(4) For the purposes of subsection (2)
(a) two offences are of the same description as each other if the statement of the offence in a
written charge or indictment would, in each case, be in the same terms;
(b) two offences are of the same category as each other if they belong to the same category of offences prescribed for the purposes of this section by an order made by the Secretary of State.
295
12.5 Section 101(1)(d)
(5) Only prosecution evidence is admissible under section 101(1)(d).’
Section 101(3) provides that:
‘The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have
such an adverse effect on the fairness of the proceedings that the court ought not to admit it.’
296
Key case: R v Hanson and others [2005] EWCA Crim 824
R v Hanson and others [2005] EWCA Crim 824 is the leading case on whether evidence of bad character does establish a propensity to commit offences of the kind with which the defendant is charged. The court formulated the following questions to be posed when an application is made to admit bad character evidence to show propensity:
* Does the defendant’s history establish a propensity to commit offences of the kind charged?
* Does that propensity make it more likely that the defendant committed the offence charged?
* Where the previous offences are of the same description or category as the offence charged,
would it be unjust to rely on them (s.103(3))?
* In any event, would proceedings be unfair if the evidence were to be admitted (s.101(3))?
297
In the same case, the court held that the following principles apply:
There is no minimum number of previous convictions required to establish a propensity. The
fewer the number of previous convictions, the weaker is likely to be the evidence of propensity.
A single previous conviction for an offence of the same description or category as the offence charged might show propensity where it shows a tendency towards unusual behaviour
298
In the same case, the court held that the following principles apply:
The strength of the prosecution case should be considered. It is unlikely to be just to admit bad character evidence where there is no or little other evidence against the defendant.
299
In the same case, the court held that the following principles apply:
While propensity is usually shown by evidence of conduct before the alleged offence, it can be demonstrated by evidence of the existence of the propensity after the offence, provided that it is likely that the propensity is ongoing. For example, propensity to be involved in a racist murder can
be shown by evidence of the expression by the accused of ra cist beliefs after the commission of the offence. It is for the jury to decide whether the accused’s racism is a recently-acquired character trait.
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12.5.2 Important matters in issue
It is important to remember that while gateway d is often described as the ‘propensity gateway’, it is in fact concerned with all manner of important matters in issue between the prosecution and defence. An example of an issue other than propensity in a trial is that of identity. In such trials
the prosecution may seek to adduce bad character evidence to support their case on identification.
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12.5.2 Important matters in issue
Where the facts of previous convictions are so unusual as to constitute a ‘signature’ of the offender’s mode of offending, the propensity itself is likely to be very powerful evidence against
the defendant. In the pre-2003 case law these were termed ‘striking similarity’ cases and based
on the principle of ‘similar fact evidence’. Straffen [1952] 2 QB 911
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12.5.2 Important matters in issue
An example of striking similarity. Where in a trial for murdering a young girl by strangulation evidence was adduced that the defendant had previously been convicted of two similar offences.
All three offences had the unusual feature that there had been no attempt at sexual assault and no attempt to conceal the body. In that case the only additional evidence against the defendant was that he was in the area and he had recently been released from Broadmoor secure psychiatric hospital. In such a case it is not necessary for the judge to give the usual warning not to convict solely or mainly on evidence of bad character.
303
12.5.3 Propensity to be untruthful
Also in R v Hanson the court held that a propensity to be untruthful is not the same as a propensity to be dishonest. Previous convictions are only likely to be capable of showing such a
propensity where:
* There was a plea of not guilty to the previous offence and the defendant gave evidence at trial
which the jury must have disbelieved; or
* The way in which the offence was committed involved being untruthful, e.g. fraud by false representation.
304
12.5.3 Propensity to be untruthful
In practice this means that while burglary is categorised as a dishonesty offence, it does not logically follow that each and every burglar is untruthful. A person can commit a burglary and go
onto admit it in interview and plead guilty, in such circumstances, it would incorrect to describe their behaviour as general untruthful.
305
12.5.4 Cross-admissibility
Where a defendant faces multiple charges in the same proceedings, the bad character provisions apply as if each offence were charged in separate proceedings. Therefore a gateway is required to allow cross-admissibility of evidence of one offence as evidence of the other. The most likely gateway to fulfil this function is s.101(1)(d).
306
12.5.4 Cross-admissibility
For example, where a man is accused of sexual assaults on both of his stepdaughters (A and B),
evidence from A that she was assaulted is only evidence that the defendant committed offences
against her unless it is admissible through gateway (d) to show a propensity to commit offences
of the kind alleged, in which case it also becomes evidence against the defendant when the jury are considering the allegations made by B. In such a case, if a jury were sure that the defendant was guilty in respect of A and they were further sure that that conviction established a propensity
to offend in a manner relevant to B’s case, the evidence can be lawfully deployed in that way
307
12.5.5 Functions of the judge and jury
The judge is to determine whether evidence is capable of establishing a propensity. If evidence is admitted to show propensity, it is a matter for the jury whether it does actually show
the propensity that is asserted. Leave of the court is required to admit evidence through this gateway.
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12.6 Section 101(1)(e): Important matter in issue between the defendant and a co-defendant
Section 101(1)(e):
‘it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant’. Section 104 CJA 2003 states: ’1 Evidence which is relevant to the question whether the defendant has a propensity to be untruthful is admissible on that basis under section 101(1)(e) only if the nature or conduct of his defence is such as to undermine the co-defendant’s defence
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12.6 Section 101(1)(e): Important matter in issue between the defendant and a co-defendant
2 Only evidence—
(a) which is to be (or has been) adduced by the co-defendant, or
(b) which a witness is to be invited to give (or has given) in cross- examination by the codefendant, is admissible under section 101(1)(e).’
Note that the fairness test in s.101(3) CJA 2003 does not apply to s.101(1)(e). Also, because by definition evidence that comes in through this gateway is not prosecution evidence, s.78 PACE Act 1984 does not apply to it. Therefore it is very hard for a defendant (D1) to exclude evidence of D1’s bad character where it is a co-defendant rather than the prosecution that seeks to adduce it.
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12.6 Section 101(1)(e): Important matter in issue between the defendant and a co-defendant
While the propensity of the co-accused to commit offences of the type charged is not itself an issue between the co-defendants, evidence of such a propensity becomes admissible where one of them asserts that they have no such propensity, in which case the other defendant can adduce
evidence of a propensity. The effect of s.104 is that evidence of the co-defendant’s propensity to be untruthful is only admissible where the nature of the defence is such as to undermine the defence of the codefendant that seeks to adduce the evidence.
Leave of the court is required to admit evidence through this gateway.
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12.7 Section 101(1)(f): Correcting a false impression
Section 101(1)(f):
‘it is evidence to correct a false impression given by the defendant’.
Section 105 states:
‘(1) For the purposes of section 101(1)(f):
(a) the defendant gives a false impression if he is responsible for the making of an express or
implied assertion which is apt to give the court or jury a false or misleading impression about the defendant;
(b) evidence to correct such an impression is evidence which has probative value in correcting it.
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12.7 Section 101(1)(f): Correcting a false impression
(2) A defendant is treated as being responsible for the making of an assertion if:
(a) the assertion is made by the defendant in the proceedings (whether or not in evidence given by him),
(b) the assertion was made by the defendant:
(i) on being questioned under caution, before charge, about the offence with which he is charged, or
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12.7 Section 101(1)(f): Correcting a false impression
(ii) on being charged with the offence or officially informed that he might be prosecuted for it, and evidence of the assertion is given in the proceedings,
(c) the assertion is made by a witness called by the defendant,
(d) the assertion is made by any witness in cross-examination in response to a question asked
by the defendant that is intended to elicit it, or is likely to do so, or
(e) the assertion was made by any person out of court, and the defendant adduces evidence of it in the proceedings.
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12.7 Section 101(1)(f): Correcting a false impression
(3) A defendant who would otherwise be treated as responsible for the making of an assertion shall not be so treated if, or to the extent that, he withdraws it or disassociates himself from it.
(4) Where it appears to the court that a defendant, by means of his conduct (other than the giving of evidence) in the proceedings, is seeking to give the court or jury an impression about
himself that is false or misleading, the court may if it appears just to do so treat the defendant as being responsible for the making of an assertion which is apt to give that impression.
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12.7 Section 101(1)(f): Correcting a false impression
(5) In subsection (4) ‘conduct’ includes appearance or dress.
(6) Evidence is admissible under section 101(1)(f) only if it goes no further than is necessary to
correct the false impression.
(7) Only prosecution evidence is admissible under section 101(1)(f).’
Leave of the court is required to admit evidence through this gateway.
It is possible for s.101(1)(f) to have an effect even where it is the prosecution that adduces the evidence that creates a false impression.
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12.8 Section 101(1)(g): Attack on another person’s character
Section 101(1)(g): ‘the defendant has made an attack on another person’s character’.
2 In subsection (1) ‘evidence attacking the other person’s character’ means evidence to the effect that the other person:
(a) has committed an offence (whether a different offence from the one with which the defendant is charged or the same one), or
(b) has behaved, or is disposed to behave, in a reprehensible way;
and “imputation about the other person” means an assertion to that effect
317
12.8 Section 101(1)(g): Attack on another person’s character
Section 101(1)(g): ‘the defendant has made an attack on another person’s character’.
3 Only prosecution evidence is admissible under section 101(1)(g).’
Note that this gateway can be used to admit evidence of dishonesty, not just of a propensity to be untruthful, as is the case where evidence is admitted thorough the s.101(1)(d) gateway.
The reason is that the purpose of the s.101(1)(g) is to allow the jury to assess how likely it is that the
attack on the other person’s character is true. In assessing this, the jury are entitled to know the
character of the person who makes the allegation.
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Attack is made on any person
This subsection is triggered where an attack is made on any person, living or dead. It is also unimportant whether the person whose character has been attacked is or is not a witness in the
case. Leave of the court is required to admit evidence through this gateway.
The fairness test in s.101(3) CJA 2003 applies to this gateway.
319
12.9 Directing the jury
It should be made clear to the jury that the weight to be placed on evidence of bad character that has been adduced during the trial is a matter for them.
The jury must be warned not to place too much reliance on bad character evidence. It should be stressed that bad character evidence cannot be used to bolster a weak case, or to prejudice the jury against the defendant. The jury should be directed that:
* they should not conclude that the defendant was guilty or untruthful merely because D had previous convictions; and
* a propensity is not enough to show that the defendant committed the offence alleged in this case.
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12.9 Directing the jury
The significance of bad character evidence should be assessed in the light of all the evidence in
the case. Where an allegation of conduct that did not result in a conviction is relied on as evidence of
propensity and it is disputed, the jury should be directed that they should not rely on it unless they are sure that it is true
321
13 Bad character – non defendant
13.1 Section 100: Gateways for admissibility of non-defendant bad
character evidence
Section 100 CJA 2003 states:
1 In criminal proceedings evidence of the bad character of a person other than the defendant
is admissible if and only if:
(a) it is important explanatory evidence,
(b) it has substantial probative value in relation to a matter which:
(i) is a matter in issue in the proceedings, and
(ii) is of substantial importance in the context of the case as a whole, or
(c) all parties to the proceedings agree to the evidence being admissible.
322
13.1 Section 100: Gateways for admissibility of non-defendant bad
character evidence
2 For the purposes of subsection (1)(a) evidence is important explanatory evidence if:
(a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and
(b) its value for understanding the case as a whole is substantial.
323
13.1 Section 100: Gateways for admissibility of non-defendant bad
character evidence
3 In assessing the probative value of evidence for the purposes of subsection (1)(b) the court must have regard to the following factors (and to any others it considers relevant):
(a) the nature and number of the events, or other things, to which the evidence relates;
(b) when those events or things are alleged to have happened or existed;
(c) where:
(i) the evidence is evidence of a person’s misconduct, and
(ii) it is suggested that the evidence has probative value by reason of similarity between that
misconduct and other alleged misconduct, the nature and extent of the similarities and the dissimilarities between each of the alleged
instances of misconduct;
324
13.1 Section 100: Gateways for admissibility of non-defendant bad
character evidence
d) where
(i) the evidence is evidence of a person’s misconduct,
(ii) it is suggested that that person is also responsible for the misconduct charged, and
(iii) the identity of the person responsible for the misconduct charged is disputed,
the extent to which the evidence shows or tends to show that the same person was responsible
each time.
4 Except where subsection (1)(c) applies, evidence of the bad character of a person other than
the defendant must not be given without leave of the court.’
Evidence under s.100 can be adduced by any party.
Leave of the court is required unless all parties agree to the admission of the evidence
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13.1.1 Section 100(1)(a)
Important explanatory evidence
The definition of ‘important explanatory evidence’ (s.100(2)) is the same as the one given in s.102 in relation to defendant bad character evidence:
* without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case; and
* its value for understanding the case as a whole is substantial. The same considerations apply.
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13.1.2 Section 100(1)(b)
Substantial probative value in relation to a matter in issue and of substantial importance in the context of the case as a whole
Matter in issue’ can refer to either credibility or a disputed fact. Although there is no specific reference to propensity as a possible matter in issue as we have seen in s.103, propensity can be a matter in issue for the purposes of s.100. The effect of this is that a defendant can adduce evidence of another person’s propensity to commit offences of the type charged to show that that person, and not the defendant himself, committed the offence
327
Substantial probative value in relation to a matter in issue and of substantial importance in the context of the case as a whole
The inclusion of the word ‘substantial’ in the subsection indicates that in order to be admissible, the evidence must be capable of having an impact on the way in which the jury could assess the
evidence of a witness or the case as a whole. Whether the misconduct of a non-defendant has substantial probative value depends on the nature, number and age of the instances of
misconduct. So recent misconduct is likely to have greater probative value than misconduct long ago. Where it is alleged that the non-defendant committed the offence charged, the similarity of the past misconduct to the facts of the offence charged will be important.
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14 Bad character – procedure
14.1 Exclusion and safeguards
14.1.1 Section 78 PACE Act 1984
This section allows a judge discretion to exclude any evidence that the prosecution seeks to adduce on the ground that its admission would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. It has no application where one defendant seeks to adduce evidence against another. Section 101(3) reads:
‘The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have
such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
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14.1.2 Section 101(3) Criminal Justice Act 2003
This subsection applies to evidence of the defendant’s bad character that is to be admitted through gateways 101(1)(d) or (g). The wording is very similar to that of s.78 PACE Act 1984, with the exception that the word ‘must’
appears in s.101(3), whereas the word ‘may’ appears in s.78. It is hard to see in what circumstances the difference in the wording would make a practical
difference, but for the defence advocate it is obviously preferable to use s.101(3) because of stricter wording
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14.1.3 Sections 101(1)(d) and 103(3) CJA 2003
These sections allow the court to exclude evidence of the commission by the defendant of an offence of the same description or type as the offence charged if the court is satisfied that, by
reason of the time that has elapsed since the earlier conviction or for any other reason, it would be unjust to admit the evidence.
331
14.1.4 Section 107 CJA 2003
This section gives the court discretion to stop the case where it is satisfied at any time after the close of the case for the prosecution that bad character evidence that has been admitted is
contaminated and the contamination is such that the conviction of the defendant of the offence with which D is charged would be unsafe.
332
14.1.5 Section 110 CJA 2003
Section 110 requires the court to give reasons in open court for any ruling it makes on the issue of bad character
333
14.2 Proving convictions under ss.73–75 PACE Act 1984
14.2.1 Section 73: Proving convictions and acquittals
Where there is a dispute as to whether a person has in fact been convicted or acquitted of an offence in the past, whether in the UK or in another EU Member State, s.73 provides that the
conviction or acquittal may be proved by the production of the certificate of conviction (signed by the proper officer of the court) from the court where the conviction or acquittal took place.
The certificate must be accompanied by evidence that the person named in it is the person whose conviction or acquittal is in issue.
334
14.2.2 Sections 74 and 75 PACE Act 1984 Using convictions as evidence that an offence was committed
Section 74 provides that where a person is proved to have been convicted of an offence by any
court in the UK or other EU Member State, that person shall be taken to have committed the offence unless the contrary is proved. The burden of proving that the offence was not committed by the person whose conviction of the offence has been proved is on that person.
The burden can be discharged by showing on the balance of probabilities that the offence was not committed by that person. Section 75 makes various documents including the information, charge sheet and/or indictment admissible as evidence of the facts on which the conviction was based.
335
14.3 Procedural requirements
The procedural rules to be followed when a party wishes to adduce bad character evidence are found in Part 21 of the Criminal Procedure Rules.
336
14.3.1 Notices, applications and responses
Rule 21.2 requires that a party wishing to adduce bad character evidence must, in the case of:
* non-defendant bad character evidence, make an application under rule 21.3; or
* defendant bad character, give notice under rule 21.4.
337
14.4 Rules 21.2 and 21.4: Defendant bad character
14.4.1 Time Limit
Prosecution Evidence
* Magistrates’ court – Not more than 20 business days after the defendant pleads not guilty
* Crown Court – Not more than 10 business days after the defendant pleads not guilty
338
Co-Defendant’s Evidence
As soon as reasonably practicable, and in any event not more than 10 business days after the prosecutor discloses the material on which the notice is based
339
Response
Not more than 10 business days after service of the notice
340
14.4.2 Contents: Prosecution Evidence and Co-Defendant’s Evidence
* Set out the facts of the misconduct on which that party relies;
* Explain how that party will prove those facts (whether by certificate of conviction, other official record, or other evidence), if another party disputes them; and
* Explain why the evidence is admissible
341
Response
In the application explain, as applicable-
* Which, if any, facts of the misconduct set out in the notice that party disputes;
* What, if any, facts of the misconduct that party admits instead;
* Why the evidence is not admissible;
* Why it would be unfair to admit the evidence; and
* Any other objection to the notice
342
14.5 Rules 21.2 and 21.3: Non-defendant bad character
14.5.1 Time Limit
Magistrates’ court and Crown Court
* As soon as reasonably practicable; and
* In any event not more than 10 business days after the prosecutor discloses material on which
the application is based (if the prosecutor is not the applicant)
343
Response
Not more than 10 business days after service of the application
344
14.5.2 Contents
Magistrates’ court and Crown Court
* Set out the facts of the misconduct on which that party relies;
* Explain how that party will prove those facts (whether by certificate of conviction, other official
record, or other evidence), if another party disputes them; and
* Explain why the evidence is admissible.
345
Response
In the notice explain, as applicable-
* Which, if any, facts of the misconduct set out in the application that party disputes;
* What, if any, facts of the misconduct that party admits instead;
* Why the evidence is not admissible; and
* Any other objection to the application
346
14.6 The court’s powers
The court can determine an application with or without a hearing in public or in private. The decision must be announced at a hearing in public, but in the absence of the jury. The court has a discretion to shorten or extend time limits or to allow an application or notice to be given in a different form. Extensions to time limits can be granted after the time limit has
expired.
347
14.6 The court’s powers
In practice, written notices in the form required by the rules are usually served where the prosecution proposes to adduce evidence through the s.101(1)(c) or (d) gateways. Evidence that
becomes admissible through the other gateways in s.101 is likely to do so ‘on the hoof’ as a result of something said or done in the course of the trial. In those circumstances the application is likely to be made orally.
348
14.7 Summary
This section considered:
* the powers for exclusion of defendant bad character and safeguards:
- s.78 PACE – prosecution evidence only
- s.101(3) CJA 2003 – discretion to exclude applies to defendant’s bad character under these
gateways only:
◦ s.101(1)(d) – relevant to an important matter in issue between D and P
◦ s.101(1)(g) – D attacked another person’s character
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14.7 Summary
- s.101(1)(d) and s.103(3) – offences may be excluded by length of time since conviction or for
any other reason it would be unjust to admit the evidence.
- s.107- stopping the case where evidence is contaminated
- s.110- requires the court to give reasons in open court on bad character rulings
* proof of convictions under ss.73- 75 PACE
* the procedure for adducing and opposing the introduction of bad character evidencedefendant and non-defendant.
350
